Hardy v. Hardy.

MONTGOMERY, J., dissenting. The defendant made a motion to set aside a verdict and judgment at the same term at which they were entered. He does not aver that there was excusable negligence, and the facts alleged, even if they had been found to be true, did not constitute excusable negligence. They were evidently urged solely as an appeal to the discretion of the Judge to set aside a verdict at the same term. If the setting aside the judgment had rested upon the ground of excusable neglect, there would have been error. But that ground nowhere appears in the motion, nor is it intimated anywhere in the record, and was evidently as foreign to the defendant as it was to the Judge. The Judge did not find whether there had been excusable neglect or not. No one suggested or urged that there had been such, nor is The Code, sec. 274, referred to. The Judge stated that he considered the affidavits filed, but without any finding what state of facts they proved, beyond the recital that the defendant had no notice of the special term at which the case was tried, and which he was then holding, he immediately adds "in the exerciseof the discretion reposed in the Court," that he sets aside "the verdict of the jury herein rendered at this term," and the order entered upon such verdict, and continued the cause for trial by jury at next term.

The rule that all action, taken at any term of the Court, is in fieri, and can be set aside at that term by virtue, as the Judge recited, "of the discretion reposed in the Court," has for wise purposes always existed in the English law from time immemorial. No case can be found restricting the exercise of that discretion, and there ought to be none. Allison v. Whittier, (180) 101 N.C. 490. Certainly there are none in the North Carolina Reports. The only case relied on,Quincy v. Perkins, 76 N.C. 295, is not a limitation upon "the exercise of the discretion of the Judge" (as he recites in this case) to set aside the verdict at the same term at which it was rendered, but is an extension of the power to set aside for excusable neglect at that term. The reason for this is plain. The Judge might not wish to exercise his discretionary power, which he says he did in this case, and, if he did, whether he refused or granted the motion, there was no appeal; whereas, if he found there was or was not excusable neglect, his conclusion upon the facts found could be reviewed.

But here the defendant did not choose to take that course. He did not aver excusable neglect. His counsel was doubtless fully aware that his client's ignorance of the special term would give him no legal rights, not being excusable neglect, but thought it was a fact which, if believed by the Judge, might, with the other circumstances of this case, appeal to his discretionary power to set the verdict and judgment aside. He therefore properly relied upon the discretionary power of the Judge, as reasonably informed counsel would do. The Judge hence did not find the facts, nor did he adjudge that there was or was not excusable neglect. Hence, also, there is nothing for us to reveiw [review]. The suggestion by plaintiffs' counsel in this Court, that the Judge set aside the action taken for excusable negligence is directly contrary to his judgment that he did so as a "matter of discretion," and is unsupported by a single word in the record. He simply said that he had considered the affidavits, and "in the exercise of the discretion reposed in the Court," set aside a verdict and order made "at this term."

The uniform and unbroken policy of the courts has been that the appellate courts have always refused to interfere with the exercise of such discretionary power reposed in the (181) trial Judges.

The facts recited in the motion and affidavit appealed to the Judge's discretion, but the defendant did not aver that they constituted excusable neglect, nor did the Judge so hold, and, to overrule him on that ground, would be to hold erroneous a ruling which he has not made.

No error.