In Re the Will of Herring , 19 N.C. App. 357 ( 1973 )

198 S.E.2d 737 (1973) 19 N.C. App. 357

In the Matter of the WILL of Ethel E. HERRING, Deceased.

No. 734SC120.

Court of Appeals of North Carolina.

September 12, 1973.

Chambliss, Paderick & Warrick, by Benjamin R. Warrick, Clinton, for propounder appellant.

Warren & Fowler, by Miles B. Fowler, Clinton, for caveator appellees.

HEDRICK, Judge.

The only exception is to the order setting aside the verdict and granting a new trial. Therefore, our review is limited to the question of whether error appears on the face of the record.

A new trial may be granted to all or any of the parties and on all or part of the issues for an error in law occurring at the trial and objected to by the party making the motion. G.S. § 1A-1, Rule 59(a)(8). G.S. § 1A-1, Rule 59(d) provides:

"Not later than 10 days after entry of judgment the court of its own initiative, on notice to the parties and hearing, may order a new trial for any reason for which it might have granted a new trial on motion of a party, and in the order shall specify the grounds therefor."

Where no question of law or legal inference is involved, a motion to set aside the verdict is addressed to the sound discretion of the trial court and its ruling is not subject to review in the absence of an abuse of discretion. Pruitt v. Ray, 230 N. C. 322, 52 S.E.2d 876 (1949); Goodman v. Goodman, 201 N.C. 808, 161 S.E. 686 (1931); Glen Forest Corp. v. Bensch, 9 N.C.App. 587, 176 S.E.2d 851 (1970). But when a judge presiding at a trial grants or refuses to grant a new trial because of some question of law or legal inference which the judge decides, the decision may be appealed and the appellate court will review it. McNeill v. McDougald, 242 N.C. 255, 87 S.E.2d 502 (1955); Akin v. Bank, 227 N.C. 453, 42 S.E.2d 518 (1947).

The order appealed from, setting aside the verdict and granting a new trial for errors of law committed during the trial, clearly was made on the court's own initiative and while the record seems to indicate the parties stipulated that the order could be signed out of the county and more than ten days "subsequent to the end of the August 28, 1972, Session of the Sampson County Superior Court", there is nothing in the record to show that the order was entered after "notice to the parties and hearing" as required by Rule 59(d). Moreover, the caveators' motions, made in apt time, have not yet been ruled on.

We point out that neither the caveators' motion for a new trial under Rule 59(a)(8), nor the court's order for a new trial entered on its own initiative upon the same grounds [Rule 59(a)(8)], specifies the errors of law committed during the trial which were prejudicial to the caveators. Obviously, without more specificity, the appellate court would be forced to embark on a voyage of discovery through an uncharted record to find the errors of law referred to in the order. Roberts v. Hill, 240 N.C. 373, 82 S.E.2d 373 (1954); Akin v. Bank, supra; Jenkins v. Castelloe, 208 N.C. 406, 181 S.E. 266 (1935); Powers v. City of Wilmington, 177 N.C. 361, 99 S.E. 102 (1919).

Since the trial court erred in setting aside the verdict and ordering a new trial for errors of law committed at trial without specifying the errors upon which his action was based, we would usually reverse the order and remand the case for entry of judgment on the verdict rendered. Then the caveators, as the parties aggrieved, would have the right to appeal to this court for hearing only upon assignments of error in matters of law preserved, assigned and relied upon by them. Watkins v. Grier, 224 N.C. 334, 30 S.E.2d 219 (1944).

However, where the ends of justice require, this court will order the verdict rendered to be set aside and a new trial had, to the end that the whole case may be properly developed on a new trial in accordance with the usual course and practice. Watkins v. Grier, supra; Jernigan v. Neighbors, 195 N.C. 231, 141 S.E. 586 (1928); 1 Strong, N.C.Index 2d, Appeal and Error § 62.

It is apparent from a review of the court's charge that the court incorrectly instructed the jury that the quantum of evidence necessary for the propounder to prove the existence of the alleged lost will was by the greater weight of the evidence. The proper quantum of proof to show the existence of a lost instrument is proof which is clear, strong and convincing. See Hewett v. Murray, 218 N.C. 569, 11 S.E.2d 867 (1940); 57 Am.Jur., Wills, §§ 568, 981; 30 Am.Jur.2d, Evidence, § 1167; Annot., 41 A.L.R. 2d 393.

Therefore, since the order appealed from may not be affirmed because of errors appearing on the face of the record, and since to reverse and remand the case for the entry of judgment on the verdict rendered would invite an appeal by the caveators which could result only in a new trial, and since in our opinion the ends of justice require a retrial, we vacate the order appealed from, set aside the verdict rendered, and order a new trial; so that the whole case may be developed in accordance with the usual course and practice.

New trial.

BROCK, C. J., and VAUGHN, J., concur.