Davenport v. . Terrell , 103 N.C. 53 ( 1889 )

The material facts are stated in the opinion. The record contains but one exception. After verdict for the plaintiffs, the defendant's counsel moved the court for a new trial because the verdict was against the weight of evidence. The motion was argued by counsel. During the discussion the court (judge) remarked that if he had been on the jury he would have found differently, but that it was a small matter, or that there was a small amount involved, and the case ought not to be tried again. The motion was not then disposed of, but afterwards the court, upon consideration and in the exercise of its discretion, discharged the rule for a new trial. Appeal by defendant.

On the argument in this Court counsel raised no question as to the discretionary power of the judge below to grant or refuse a motion of this kind. We cite only one late case reaffirming the settled principle —Redmond v. Stepp, 100 N.C. 212.

But when it appears that the judge was influenced in the exercise of such power by an erroneous view of the law, this (54) ruling can be reviewed, and ought to be reversed on appeal in this Court. Vest v. Cooper, 68 N.C. 131. In the case before us the rule for a new trial was discharged by the court "upon consideration and in theexercise of its discretion," not at the time when the remark which is set forth in the assignment of error was made, but afterwards. We must accept the statement in the record, and as the motion was refused after deliberate consideration and in the exercise of an admitted power, it is useless to speculate as to whether there would have been error for which a new trial might be awarded, if it clearly appeared that his Honor was influenced by the consideration that only a small amount was involved in the controversy settled by the verdict.

No error. Affirmed.

Cited: Edwards v. Phifer, 120 N.C. 406.