Holmes v. Godwin

• Decision Date: 30 June 1873
• Citation: Holmes v. Godwin, 69 N.C. 467 (N.C. 1873)
• Court: North Carolina Supreme Court
• Parties: JOHN HOLMES, Executor of GEORGE HOLMES, v. ISHAM GODWIN and BLACKMAN GODWIN.

69 N.C. 467

JOHN HOLMES, Executor of GEORGE HOLMES,

v.ISHAM GODWIN and BLACKMAN GODWIN.

Supreme Court of North Carolina.

June Term, 1873.

Granting a new trial because of newly discovered evidence must necessarily always, or nearly always, be within the discretion of the presiding Judge, and his decision can very rarely in such cases, be on a naked matter of law or legal inference, so as to authorize an appeal.

In an action for claim and delivery of personal property (Replevin, Rev. Code, chap. 98), when the property cannot be redelivered by plaintiff in specie, the value thereof, in case of a judgment for defendant, should be assessed at the time of the trial, and not at the time of its seizure by the sheriff.

( Scott v. Elliott,63 N. C. Rep. 215, cited and commented on.)

CIVIL ACTION, claim and delivery of personal property, tried at the Spring Term, 1873, of the Superior Court of CUMBERLAND county, by his Honor, Buxton, J.

The action was commenced by the testator of plaintiff, December, 1869, who having died, his executor, the present plaintiff, became a party, and prosecutes the same for the benefit of the estate of the testator.The property claimed is described in the plaintiff's affidavitas “a certain quantity of corn now in my crib on land rented to the defendant, Blackman Godwin, by virtue of a special property therein--the same being legally in my possession, by reason of the contract of renting made between myself and said Blackman--lien attaching to the said corn as part of the crop raised on the land rented to the said Blackman, not having been satisfied or discharged; the value of the property being $150.”The clerk endorsed on the affidavit the following order to the sheriff: “The plaintiff giving bond according to law, you are required to take from the defendants the property within described and deliver it to the plaintiff,” which was accordingly done.Plaintiff, in his complaint, alleges that defendants removed the corn without his consent, and demands judgment for the possession thereof, or for $150, in case such possession cannot be had, and for $50 damages.

The defendants, in their joint answer, deny the allegations of the complaint, and put in a counter claim in behalf of Blackman Godwin, on the ground that the 150 bushels of corn, worth $150, was in his possession as the property of his brother, one Elias Godwin, and was wrongfully taken by the plaintiff, wherefore he asks judgment for the value thereof, to wit: $150, and for damages, $50.

It was not disputed that the plaintiff's testator, by a verbal lease, rented the land to Blackman Godwin for the year 1869.The terms of the lease were disputed; the plaintiff contending that Godwin, the tenant, was to pay $100 for rent and repair the fences; and $150 if he failed to repair the fences; that without complying with the terms, he with the concurrence of the other defendant, carried from the crib upon the land, two wagon loads of corn to Isham Godwin's.For the defendants, it was contended, that Blackman Godwin, the tenant, was to pay as rent $100, and put two sills under the crib, all of which was done before any corn was removed.One Elias Godwin, a brother of the tenant, cropped the land with him, and claimed the corn carried to Isham Godwin's as part of his share of the crop.There was much conflicting evidence as to points not relevant to the decision here, the following facts being established by the jury, upon issues submitted to them: 1st.That no rent was due; 2d.That the plaintiff, under the order of the clerk, took 125 bushels of corn, worth $136.25, and allowed to defendants by way of damages, 6 per cent. interest on the value of the corn from 1st January, 1870.

Plaintiff obtained a rule for a new trial, assigning as the grounds therefor: 1st.For error in the Court in submitting any other issue to the jury than this: “Whether any rent was due?” 2nd.For error in this: The plaintiff in addition to the foregoing reason, moved for a new trial because of newly discovered evidence, filing an affidavit in support of the motion, wherein it was stated that since the finding of the jury, the plaintiff had discovered that he could prove that a creditor of Elias Godwin, had levied an attachment on the corn in the crib, subject to his (the plaintiff's) claim, and that under this attachment corn, to the amount of $27.12 had been sold and applied to the plaintiff's (in the attachment) claim, and that this exhausted the corn in the crib at that time.And further, that he could also prove that after the corn was delivered to the plaintiff by the sheriff, the door of the crib was broken open by Blackman Godwin and a quantity of corn hauled away by him; also that some more of the corn was hauled away by direction of Isham Godwin.In answer, the defendant, Blackman Godwin, was permitted by the Court to file a counter affidavit denying the statements in that of the plaintiff, which permission is assigned as grounds for a new trial.

His Honor considered the plaintiff's first assignment of error, in relation to the issues submited to the jury, as untennable.As to the second, upon a suggestion from the Court, the defendants were permitted to enter a remittiter of $27.12, the sum stated to have been applied towards the attachment against Elias Godwin, and the rule for a new trial was thereupon discharged.Judgment in accordance with the verdict, and appeal by the plaintiff.

B. and T. C. Fuller, for appellant .

Guthrie, contra .

RODMAN, J.

The plaintiff claimed certain corn as rent owing to him by Blackman Godwin, and alleged that Blackman and Isham Godwin had taken possession of the same; that it was of the value of $150, and demanded judgment that the possession of the corn be delivered to him, or if that could not be done, then for the value.(C. C. P., sec. 176, et seq.)The cause of...