5 N.C. App. 439 | N.C. Ct. App. | 1969
The original record did not contain the pleadings on which the case was tried. Upon motion being made and allowed the pleadings were supplied by an addendum to the record. The evidence in the case was not included in the record on appeal and there was no transcript of the evidence filed. The question was not raised as to whether the judgment appealed from was an interlocutory order from which no appeal lies.
The defendant excepted to the signing of the judgment entered
In the case of Shaver v. Shaver, 248 N.C. 113, 102 S.E. 2d 791 (1958), the court said:
“The presiding Judge of the Superior Court may, within established limitations, open or vacate a judgment on his own motion. During a term of court, all judgments and orders are deemed to be in fieri. Therefore, during the term any judgment or order, except one entered by consent, ordinarily may be opened, modified or vacated by the court on its own motion.”
“A judgment is in fieri during the term at which it is rendered and the judge, non constat notice of appeal, may modify, amend, or set it aside at any time during the term." Hoke v. Greyhound Corp., 227 N.C. 374, 42 S.E. 2d 407 (1947). See also State v. Godwin, 210 N.C. 447, 187 S.E. 560 (1936); GMC Trucks v. Smith, 249 N.C. 764, 107 S.E. 2d 746 (1959); Insurance Co. v. Walton, 256 N.C. 345, 123 S.E. 2d 780 (1962) ; Chriscoe v. Chriscoe, 268 N.C. 554, 151 S.E. 2d 33 (1966); Hagins v. Redevelopment Comm., 275 N.C. 90, 165 S.E. 2d 490 (1969). We are of the opinion, and so hold, that Judge McConnell had the right and authority in this case, in his discretion, to set aside the ruling allowing the motion for judgment as of nonsuit after he had dismissed the jury engaged in the trial thereof and had commenced the trial of another case.
Defendant took exception to the refusal of the trial judge to sign the judgment tendered by it dismissing this action as of nonsuit, and makes this exception the basis of its second assignment of error. In view of what is said above this assignment of error is overruled.
Defendant's third assignment of error is based on a combination of its exceptions numbered one and two, and in which defendant asserts and contends that the trial judge “erred and abused his discretion in signing the judgment dated February 20, 1969.” The judge specifically stated that striking out the previous judgment of non-suit and declaring a mistrial was done in the exercise of his discretion. In 2 McIntosh, N.C. Practice 2d, § 1548, it is said:
“The causes for which a mistrial may be ordered are varied and within the discretion of the court. It may be necessary on account of the sickness or other disability of the judge, juror, parties or counsel; or it may be necessary to prevent injfistice,*443 as where a party is taken by surprise after the trial has begun, or it is discovered that a juror is disqualified or there has been an improper remark or expression of opinion by the court, or abuse of privilege by counsel, or some misconduct on the part of the jurors or others, or when the jury fails to agree upon a, verdict after reasonable time for deliberation.”
In Chapman v. Dorsey, 230 Minn. 279, 41 N.W. 2d 438, it is; said:
“Judicial discretion is the sound choosing by the court, subject to the guidance of the law, between doing or not doing a thing, the doing of which cannot be demanded as an absolute right of the party who asks that it be done. A right which is positive is an unqualified right — one which is not dependent upon, and which in fact does not admit of any exercise of, discretion.”
The exercise of judicial discretion by a judge is not an arbitrary power, and is not one to be used to gratify the passion, partiality, whim, vindictiveness, or idiosyncracies of the individual judge. In the case of Hensley v. Furniture Co., 164 N.C. 148, 80 S.E. 154 (1913), in discussing the nature of judicial discretion Justice Walker said:
“Judicial discretion, said Coke, is never exercised to give effect to the mere will of the judge, but to the will of the law. The judge’s proper function, when using it, is to discern according to law what is just in the premises. ‘Discernere per legem quid sit justum’ Osborn v. Bank, 9 Wheat., 738. When applied to a court of justice, said Lord Mansfield, discretion means sound discretion guided by law. It must be governed by rule, not by humor; it must not be arbitrary, vague, and fanciful, but legal and regular. 4 Burrows, 2539. While the necessity for exercising this discretion, in any given case, is not to be determined by the mere inclination of the judge, but by a sound and enlightened judgment, in an effort to attain the end of all law, namely, the doing of even and exact justice, we will yet not supervise it, except, perhaps, in extreme circumstances, not at all likely to arise; and it is therefore practically unlimited. We do not interfere unless the discretion is abused.”
Also in 2 McIntosh, N.C. Practice 2d § 1548, referring to withdrawing a juror and ordering a mistrial it is said: “The withdrawal is merely a fiction carried over from the criminal practice, and amounts to nothing more than the ordering of a mistrial.” In this case the fact that the judge had commenced the trial of another
Affirmed.