Strayhorn v. Fidelity Bank

• Decision Date: 26 October 1932
• Docket Number: 330.
• Parties: STRAYHORN v. FIDELITY BANK et al.
• Court: North Carolina Supreme Court

166 S.E. 312

203 N.C. 383

STRAYHORN v. FIDELITY BANK et al.

No. 330.

Supreme Court of North Carolina

October 26, 1932

Appeal from Superior Court, Durham County; Barnhill, Judge.

Action by Charles Strayhorn against the Fidelity Bank and another. From order setting aside verdict for named defendant and granting plaintiffs a new trial, named defendant appeals.

Appeal dismissed.

Civil action to recover value of collateral sold and proceeds used to pay the note with which it was hypothecated, and part of residue applied on a different obligation.

There was a verdict for the defendant upon which judgment was tendered. His honor set the verdict aside in his discretion and ordered a new trial. Defendant appeals, assigning error in the admission of evidence and failure to nonsuit.

Fuller, Reade & Fuller, of Durham, for appellant.

R. O. Everett, of Durham, for appellee.

STACY, C.J.

The questions sought to be presented are not properly before us. Thomas v. Carteret County, 180 N.C. 109, 104 S.E. 75.

So long as the matter was in fieri, the keeping of the verdict resided in the breast of the judge, and he was at liberty, at any time during the term, in the exercise of a sound discretion, to set it aside and to award a new trial, from which ruling no appeal lies. C. S. § 591; Goodman v. Goodman, 201 N.C. 794, 161 S.E. 688; Welch v. Huske Hardware House, 202 N.C. 642, 163 S.E. 679; Smith v. Matthews, 203 N.C. 218, 165 S.E. 350; Bank of Wake v. Sanders, 203 N.C. --, 165 S.E. 711.

Appeal dismissed.