Hall v. . Landen

Plaintiffs declared on certain notes, one of them secured by mortgage on land, executed by J. F. Landen and his wife, Emily S. Landen. Upon the death of J. F. Landen pending the action his administrator, G. F. Landen, and his heirs, were made parties defendant. Liability on the notes was denied. When the cause came on for trial, at the close of plaintiffs' evidence, nonsuit was ordered as to all defendants except G. F. Landen, administrator. In response to issues submitted the jury found, (1) that plaintiffs were owners and holders of two of the notes, (2) that no credits had been made thereon by J. F. Landen, and (3) that plaintiffs were not entitled to recover of G. F. Landen, administrator, on said notes. Plaintiffs moved to set aside the verdict on the third issue and for judgment on the other issues, or for judgment notwithstanding the verdict. After hearing argument, the court, in its discretion, set aside the verdict and the order of nonsuit, and ordered a new trial on the entire case.

Under the circumstances, we think the exercise by the judge below of his discretion to set aside the verdict and the order previously entered during the trial may not be successfully challenged. The exercise of a discretionary power in the absence of allegation or suggestion of abuse is not reviewable on appeal. Bird v. Bradburn, 131 N.C. 488, 42 S.E. 936;Brantley v. Collie, 205 N.C. 229, 171 S.E. 88; Jones v. Ins. Co.,210 N.C. 559, 187 S.E. 769.

Appeal dismissed.