Thomas v. Myers

• Decision Date: 31 October 1882
• Citation: 87 N.C. 31
• Parties: G. E. THOMAS and others v. T. H. B. MYERS and others.
• Court: North Carolina Supreme Court

87 N.C. 31

G. E. THOMAS and others

v.T. H. B. MYERS and others.

Supreme Court of North Carolina.

October Term, 1882.

CIVIL ACTION tried at Spring Term, 1882, of

BEAUFORT Superior Court, before McKoy, J.

The defendants offered in evidence, on the trial of the issues before the jury, a written acknowledgment purporting to come from one of the assignors of the plaintiff, and bearing the signature of the firm of which he was then a member, of the receipt of the defendants' note for $650, due at six months on account; and underneath, upon the same page and of the same date and bearing the firm name, was an explanatory memorandum, addressed to the defendants, stating that in case the sale of the Taylor Gin should be insufficient to cover the above amount, a remittance would be made to meet the deficiency, and in time to take up the note.

These papers bear date June 17th, 1872. Upon previous trials the entire paper had been introduced by the defendants and read in evidence. At the last trial the defendant, T. H. B. Myers, examined on his own behalf to prove the execution of both writings, and after a close inspection, testified that they were not both in the same handwriting, and the explanatory memorandum was ruled out, and the plaintiffs had a verdict for a part of their demand.

The defendants thereupon moved for a new trial, and in support thereof, the affidavit of said Myers was submitted, wherein he says that for the first time when giving in his testimony he discovered the difference in the handwriting, and that in his opinion each was written by a member of the firm, though not by the same person, and he expects to be able to show the fact at the next term.

The court being of opinion that the defendants were surprised and the verdict, if allowed to stand, “would work injustice” to the defendants, “in its discretion” ordered the verdict and judgment to be set aside and a new trial awarded. From this ruling the plaintiffs appeal.

Mr. Geo. H. Brown, Jr., for plaintiffs .

Mr. W. B. Rodman, for defendants .

SMITH, C. J.

The numerous adjudications heretofore made, that this court will not revise and reverse the exercise of a power committed to the discretion of the judge of the superior court, would seem to render superfluous any discussion or reference to precedents, and the granting or refusing a motion for a new trial, not involving the determination of a question of law, it is well settled, belongs to this class and is not subject to review on appeal.

“The new trials which have been awarded here,” is the language of HENDERSON, J., in Bank v. Hunter, 1 Dev., 100, “were in cases where there was some error which infected the verdict, such as the admission or rejection of evidence, which ought to have been...