Herndon v. North Carolina Railroad , 121 N.C. 498 ( 1897 )

Clark, J.:

The granting or refusing in this Court a new trial for newly discovered evidence, being a matter of discretion, resting upon the peculiar circumstances of each case, and not a matter of law from which a precedent can he laid down for future guidance, the Court will never discuss the facts in an opinion, hut simply grant or refuse such motion as it deems will best subserve the ends of justice. Brown v. Mitchell, 102 N. C., 347; Ferebee v. Pritchard, 112 N. C., 83; Clark v. Riddle, 118 N. C., 692; Nathan v. Railroad, Ibid, 1066. The (hurt in the present instance, upon consideration of the affidavits, grants the motion.

It is proper to say that, when a motion for anew trial for newly discovered evidence in this Court is contemplated, notice of such motion should be always given the other side and a copy of the affidavits served therewith. The respondent should also serve a copy of his counter affidavits, if time permits. Thus there will be no surprise on either party and the Court will be put in full possession of the facts. The appellant should give this notice at least ten days before the beginning of the. call of the District to which the cause belongs, unless the information comes to him after that time, when the Court may shorten the notice and, if necessary, give the respondent time to file counter affidavits. Code, Section 595. Now trials for newly discovered evidence are not favored either in the trial Court or on appeal, and the party moving on that ground must not only negative laches in himself in discovering the evidence relied on, but must give reasonable notice to the other part}r of the motion based thereon. In this case ten days notice was not given, as it should have been, hut there had been no precedent requiring it, and the appellee had opportunity to file counter affidavits, and did so.

The appellant will pajr the costs in this Court. When a new trial is granted, the costs of the appellate Court are always a matter of discretion. Code, Section 527 (1). When the new trial is on the ground of newty discovered evidence, the costs of the appellate Court should always fall upon the party obtaining the new trial, unless in exceptional cases and for special reasons, since the other party is in no laches, as is shown by its having obtained the judgment below. This is also a wholesome rule of practice, as new trials on this ground are outside of the regular course and are only granted, in discretion, when justice requires a departure from the usual jirocedure. By analogy, when a continuance is asked for on the ground of newly discovered evidence, the Statute expressly forbids it to be granted except upon payment of the costs of the Term. Code, Section 402 (2).

Motion allowed.