Edwards v. Phifer

• Decision Date: 20 April 1897
• Citation: 27 S.E. 79,120 N.C. 405
• Court: North Carolina Supreme Court
• Parties: EDWARDS et al. v. PHIFER et al.

27 S.E. 79

120 N.C. 405

EDWARDS et al.

v.PHIFER et al.

Supreme Court of North Carolina.

April 20, 1897.

New Trial—Discretion—Review. The discretion of a trial judge in setting aside a verdict as against the weight of evidence will not be disturbed.

Appeal from superior court, Mecklenburg county, Norwood, Judge.

Action by B. J. Edwards and others against W. W. Phifer and others. From a judgment granting defendants a new trial, plaintiffs appeal. Affirmed.

Osborne, Maxwell & Keerans, for appellants.

Clarkson & Duls and G. E. Wilson, for appellees.

DOUGLAS, J. The sole ground of appeal is thus given in the statement of the case: "After the jury returned their verdict, the counsel for the defendants moved the court to set aside the verdict of the jury, upon the ground that the verdict was rendered against the weight of testimony. His honor, in his discretion, granted the motion of the counsel for the defendants, set aside the verdict of the jury, and ordered a new trial." The plaintiffs except, and assign as error: "(1) That the court erred in setting aside the verdict of the jury, and exceeded its authority: (2) that the ruling of the court was arbitrary and illegal, unwarranted by the facts, and prejudicial to the plaintiffs; (3) that in no aspect of the evidence was the court justified in setting aside the verdict; (4) that the action of the court in setting aside the verdict was oppressive, unjust, and repugnant to the legal rights of the plaintiffs, and abuse of discretion."

No principle is more fully settled than that this court will not interfere with the discretion of a trial judge in setting aside the verdict, as being against the weight of evidence. Alley v. Hampton, 13 N. C. 11; Armstrongv. Wright, 8 N. C. 93; Long v. Gantley, 4 Dev. & B. 313; Brown v. Morris, 4 Dev. & B. 429; McRae v. Lilly, 23 N. C. 118; Boykin v. Perry, 49 N. C. 325; Vest v. Cooper, 68 N. C. 132; Watts v. Bell, 71 N. C. 405; Thomas v. Myers, 87 N. C. 31; Goodson v. Mullen, 92 N. C. 211; Ferrall v. Broadway, 95 N. C. 551; Redmond v. Stepp, 100 N. C. 212; Davenport v. Terrell, 103 N. C. 53, 9 S. E. 197; Whitehurst v. Pettipher, 105 N. C. 40, 11 S. E. 369; Jordan v. Farthing, 117 N. C. 181, 23 S. E. 244; Spruill v. Insurance Co. (at this term) 27 S. E. 39. The rule has been well laid down by Reade, J., in Brink v. Black, 74 N. C. 329, as follows: "The defendant had a verdict, and the judge set it aside, and granted a new trial, because, in his opinion, it was against the weight of the evidence. The defendant appealed, and the only question is, can we review his honor's order? We have so often said that we cannot that it is a matter of some surprise that we should have the question presented again. When a judge presiding at a trial below grants or refuses to grant a new trial because of some question of law or legal inference which he decides, and either party is dissatisfied with the decision of the matter of law or legal inference, his decision may be appealed from, and we may review it. But when he is of the opinion that, considering...