Abernethy v. Yount.

Connor, J.,

after stating the facts: The Code, Section 412, provides that the judge who tries the cause may in his-discretion entertain a motion to be made on -his minutes, to set aside a verdict and grant a new trial upon exceptions, or for insufficient evidence, or for excessive damages. We understand the first cause “upon exceptions” to refer to exceptions made upon the record during the trial, as for admitting or rejecting testimony, giving or refusing to give instructions, or other action of the judge. For granting or refusing to grant such motion, “involving a matter of law or legal inference,” an appeal lies to this court. Thomas v. Myers, 87 N. C., 31. For granting or refusing to set aside the verdict, or granting a new trial for insufficient evidence or excessive damages, no appeal lies. This can be done only during the term. It is held in Benton v. Collins, 125 N. C., 83, that power is given the judge by this section to set aside a verdict and grant a new trial for inadequacy of amount of damages. He may also exercise the power to set aside the verdict and judgment under the provisions of section 274. This may be done during the term or within one year thereafter. Quincey v. Perkins, 16 N. C., 295.

In addition to these causes, the judge may in his discretion set aside a verdict and order a new trial during the term for any cause which casts suspicion upon the verdict, such as misconduct of jurors or other officers of the court or the parties or witnesses. After enumerating the causes which entitle a party aggrieved to have the verdict set aside as a matter of right, Bynum, J., says: “All other circumstances of suspicion address themselves exclusively to the discretion of the presiding judge in granting or .refusing a new trial. He.is clothed with this power because of his learning and integrity, and of the superior knowledge which his presence at and participation in the trial gives him over' any other forum.” Moore v. Edmiston, 70 N. C., 471. The line which divides the cases in which the party aggrieved may as a matter of right demand that a verdict be set aside, from those in which the question rests in the discretion of the judge,was marked after full discussion, by those two eminent and learned sages of the law, Ruffin and Gaston, in State v. Miller, 18 N. C., 500. The view of the majority of the court in that case has been uniformly adopted and followed by this court. State v. Tilghman, 33 N. C., 513; Moore v. Edmiston, supra. We have no disposition to question its soundness or limit its operation further than is done in that and other cases. We fully recognize the necessity and therefore the wisdom of vesting in the presiding judge the power to so regulate the proceedings of the court over which he presides, that such order, decorum and observance of the fixed rules of procedure be enforced, as becomes the dignity of the court and secures fair and impartial trial of causes.

We think, however, that it is in no degree inconsistent with or unduly restrictive of such power, to hold that when the judge exercises it as a matter of discretion, as distinguished from a conclusion upon a “matter of law or legal inference,” he so states on the record to the end that parties may be advised respecting their right to have his action reviewed. An examination of many cases which have been before this court shows such to have been the practice. Referring to the provisions of Section 412 (4) Bynum, J., says: “Heretofore it has been the practice of Superior Courts, in granting new trials, pot to put upon record the facts or reasons moving them thereunto, and we know of no rule of law requiring it to be done. But, now, to give parties the benefit of the above section of The Code, the courts should and no doubt will, on exceptions taken by the parties aggrieved, put upon the record the matters inducing the order granting as well as refusing a new trial. The appellate court can thus see whether the order presents a matter of law which is the subject of review, or a matter of discretion which is not. In this way only it is conceived can the full benefit of that provision of The Code be secured to suitors.” Moore v. Edmiston, supra. It is stated in the opinion that the facts upon which the new trial is granted' are set out. In Smith v. Whitten, 117 N. C., 389, it is said that it is the duty of the judge, upon request, to state upon the record the facts moving him to refuse or grant a new trial. A new trial was refused in that case. . It would seem from the language of the court that if no request was made, his failure to do so may not be. made a basis of exception, it is not very clear from the report whether the motion was based upon Sec. 412 (4). In Carson v. Dellinger, 90 N. C., 226, it appeared that the motion was made to set aside the verdict to enable the mover to introduce on another trial newly discovered testimony. This was clearly within the discretion of the judge. The cases cited fully sustain the conclusion. In State v. Braddy, 104 N. C., 737, the “headnote” is misleading in stating, in general terms, the power of the court to grant a new trial. The language of Merrimon, C. J., is: “If, through inadvertence or mistake, he was about to suffer injustice, it lay in the sound discretion of the judge who presided at the trial to grant a new trial.” It was refused in that case. In Jones v. Parker, 97 N. C., 33, the motion was refused, the judge stating his reasons therefor. In State v. Boggan, 133 N. C., 761, the facts were found by. the judge; also in State v. Daniels, 134 N. C., 671. In Brink v. Black, 74 N. C., 329, the motion was made and granted because the verdict was against the weight of the evidence. In Redmond v. Stepp, 100 N. C., 212 (219) the motion to set aside the verdict was because of insufficient evidence and newly discovered testimony; so in Edwards v. Phifer, 120 N. C., 406.

In Braid v. Lukins, 95 N. C., 123, the record states that upon the return of the verdict, a motion was made to set aside “because the verdict was irregular,” the court refused judgment and the plaintiff excepted. The court set aside the verdict and granted a new trial. Merrimon, J., said: “Now in the case before us it does not appeal upon what ground the learned judge places his decision. He may have thought that the verdict was against the weight of the evidence, or that the price allowed 'for the lumber was excessive, or some other like cause may have prompted his action. The defendant, it is true, moved to set the verdict aside because it was irregular, but it does not appear that the court placed its decision upon that ground.” In Bird v. Bradburn, 131 N. C., 488 the judge expressly states that in the exercise of his discretion he refused to set aside the verdict. It cannot be denied that the practice of the judges in this respect is not uniform, although in a large majority of the cases which we have examined, the ground upon which the judge proceeded is set out, especially is this so where the power is exercised. In this connection we are impressed with the wisdom of the language of Judge Gaston in his dissenting opinion in State v. Miller, 18 N. C., 540: “I see no alternative between a steady adherence to the law, which vitiates a suspected verdict, or leaving the question of its validity or invalidity to depend on the discretion of the presiding judge. To the adoption of the latter branch of the alternative, I bave insuperable objections. It would be oppressive to the judge, dangerous to the community, and at variance with the settled principle of our law. It is impossible, indeed, not to confide discretion to judicial magistrates, but I am sure that, while every enlightened friend to free government bolds unnecessary discretion to be tyranny, every conscientious judge will say that of all bis duties none are so distressing as those wherein be can find no certain rule, but is left to bis own notions of fitness and expediency. . . . The trial by jury - — -justly considered as the strongest security to the liberties of the people which human sagacity ever devised, as well as the happiest contrivance for cherishing among all an affectionate attachment to the -laws, in the administration of which they act so important a part — -must be kept under the protection of law, and not left under the patronage of its ministers. If the old rule be disregarded, new ones must be devised. To proceed wholly without rule would be intolerable; and the courts, for their own convenience as well as for the public order, would be obliged, as it seems that the judges in New Tork bave done, to make rules.” We are quite sure that His Honor was inadvertent to the right of the plaintiff to bave him state whether he exercised the power to order a new trial as a matter of discretion, or because of law or legal inference. If it be conceded that the practice in this respect has not heretofore been uniform, we think it should be made so in justice both to suitors and judges. We are quite sure that no judge desires to exercise bis discretion when be can base bis action upon fixed rules of law and legal procedure.

His Honor declined to set aside tbe verdict because of insufficient evidence, and, without assigning any other ground, a motion is made generally for a new trial, and granted. Tbe plaintiff is thus deprived of bis verdict, which by necessary implication from ITis Honor’s action is in Ms opinion justified by the evidence, without the slightest suggestion of any reason therefor. We cannot think this consistent with either the principles upon which our judicial system is founded or the practice of our courts. We do not question His Honor’s power, if in the exercise 'of his sound discretion there had been on his part, or on the part of any other person connected with the case or the court, any irregularity or inadvertence, or any other like reason, by which the defendant had suffered injustice, to set the verdict aside. Nor do we suggest that such action would have been reviewable in this court. We do think that His Honor should have informed the parties, and put upon the record, whether he granted the motion in the exercise of his discretion, or as a matter of law or legal inference. The verdict of the jury obtained after, and as the result of, a judicial investigation, is a valuable right of which a person may not be deprived except in accordance with the law. Wood v. Railroad, 131 N. C., 48. Arbitrary discretion is not a favorite in a system of jurisprudence and procedure based upon judicial precedent and written l'aw. Of necessity, discretion must rest somewhere in the administration of the law, but it should be confined to the narrowest possible limits consistent with necessity.

We are not required in this case and, appreciating the delicacy of the question with which we are dealing and desiring to say no more than is necessary, we do not intend to say that when a judge exercises his discretion he must state the facts upon which his action is based. We simply hold that he should say, if the fact be so, that his act is controlled only by his discretion. This is but fair to the parties, just to the judge, and consistent with sound legal principles and precedent. Bird v. Bradburn, supra.

We are of opinion however that the learned and conscientious judge, who we are sure is duly sensible of and sensitive to the rights of litigants, did not grant a new trial as a matter of discretion. AVe do not think that the action of a judge should be ascribed to discretion unless he plainly says so, or there be no other explanation of his conduct.

In this case we find that the defendant excepted to the introduction of testimony, and we conclude that upon reflection Ilis Honor was of opinion that he had committed error in admitting such testimony. His Honor’s action, viewed in this way, is appealable and subject to review. Wood v. Railroad, supra. Rulings upon the trial are frequently brought here for review in this way. Was there error in the admission of the testimony? Huffman was examined as an expert; he said he was a stenographer and typewriter, had studied penmanship; and was assistant to the clerk of the court. The defendant contended that he was not qualified as an expert. It certainly would have been more in accord with the practice if His Honor had examined the witness regarding his competency as an expert and found the facts before permitting him to testify. Such finding is final, if there is any evidence to-support it. State v. Wilcox, 132 N. C., 1120; State v. Secrest, 80 N. C., 450. We think the statement of the witness as to his opportunity for forming an opinion in regard to handwriting, sufficient under the ruling of this court in Yates v. Yates, 76 N. C., 146; 1 Wigmore Ev. 510. It is further excepted for that the application for instirance, admitted to have the genuine signature, was not put in evidence. We do not think it was necessary to do so. His Honor’s ruling is sustained by the decision in Fuller v. Fox, 101 N. C., 119, and other cases following.

We find no error in any of the rulings excepted to by the defendant. We have noticed the only exceptions which appear in the record. The charge of His Honor is not set out. If the defendant had made other exceptions he should have had them put in the record. In their absence it will be presumed that the rulings of His Honor were satisfactory. We have examined the entire record with care and see nothing to suggest error. The only issue submitted was in regard to the execution of tbe note — that Was found for the plaintiff. It seems to have been conceded, or at least there was no evidence to the contrary, that the plaintiff was the purchaser for value and without notice. If the defendant, however, by reason of the action of His Honor had other exceptions in the record which he desires to have presented, we take it that he would be entitled from a proper application to the writ of certiorari in lieu of an appeal.'

His Honor did not, in terms, set aside the verdict, although he granted a new trial. The plaintiff was entitled to judgment. The Superior Court of Catawba County will proceed to render judgment on the verdict.

Error.