Michaels v. Carson

Campbell, J.

Carson assigns as error the refusal of the trial judge to allow his motion for judgment of involuntary nonsuit entered at the conclusion of the plaintiff’s evidence and renewed at the conclusion of all the evidence. In his brief, it is frankly admitted that ordinarily an appellate court will not review the trial judge’s denial of such a motion when the verdict has been set aside as against the greater weight of the evidence. In Goldston v. Wright, 257 N.C. 279, 125 S.E. 2d 462, the Supreme Court stated:

“Defendant assigns as error the denial by the trial court of his motion for a judgment of involuntary nonsuit made at the close of plaintiff’s evidence; defendant offered no evidence. This question is not presented. When the trial court, in its discretion, set aside the verdict, and ordered a new trial, the case remained on the civil issue docket for trial de novo, unaffected by rulings made therein during the trial. . . . Defendant, in respect to the denial of his motion for a judgment of involuntary nonsuit, has nothing to appeal from, for the very simple reason that in this respect there is neither a final judgment nor any interlocutory order of the superior court affecting his rights.”

This assignment of error is overruled.

Carson next-assigns as error the granting by the trial-.judge of the- plaintiff’s motion to set aside the verdict as contrary -to the greater weight of the evidence. It is argued that “the Trial Judge exceeded the legitimate bounds of his discretion.” In Edwards v. Phifer, 120 N.C. 405, 27 S.E. 79, the Supreme Court stated:

“No principle is more fully settled than that this court will not interfere with the discretion of a trial judge in setting aside the verdict as being against the weight of evidence. . . . The rule has been well laid down ... as follows: ‘The defendant had a verdict and the Judge set it aside and granted a new trial, because, in his opinion, it was against the weight of the evidence. The defendant appealed, and the only question is, can we review his Honor’s order? We have so often said that we cannot that it is a matter of some surprise that we should have the question presented again. . ' . . [W]hen [the trial judge] is of the opinion that, considering the number of the witnesses, their intelligence, their opportunity of knowing the truth, their character, their behavior, on the examination and all the circumstances on both sides, the weight of the evidence is clearly on one side, how is it practicable for us to review it unless we had the same advantages? And even if we had, we cannot try facts.’ In many cases, setting aside the verdict is the only way in which substantial justice can be done, and in any event no irreparable harm can ensue, as a new trial is the result.”

In Goldston v. Chambers, 272 N.C. 53, 157 S.E. 2d 676, the Supreme Court stated:

“It is within the power of the trial judge in the exercise of his sound discretion to set aside a jury verdict, in whole or in part. ... A verdict is a solemn act of a jury, and it should not be set aside without mature consideration; but the power of the court to set aside a verdict as a matter of discretion has always been inherent and is necessary to the proper administration of justice. . . .

We have held repeatedly since 1820 in case after case, and no principle is more fully settled in this jurisdiction, that the action of the trial judge in setting aside a verdict in his discretion is not subject to review on appeal in the absence of an abuse of discretion.”

In granting the plaintiff’s motion, it was not necessary for the trial judge to find the facts to support his order. Bird v. Bradburn, 131 N.C. 488, 42 S.E. 936.

“The record in this case discloses no abuse of discretion on the part of the trial judge; hence, the order setting aside the verdict in this case is not subject to review on appeal.” City of Randleman v. Hudson, 2 N.C. App. 404, 163 S.E. 2d 77.

This assignment of error is overruled.

Affirmed.

BROCK and Morris, JJ., concur.