73 S.E. 164 | N.C. | 1911
Lead Opinion
The facts are sufficiently stated in the opinion of the Court by Mr.Justice Walker.
This case has been before us several times and is reported in
At the Fall Term, 1910, of this Court, we granted a new trial for newly discovered evidence. The appeal had been taken by the plaintiff, who had recovered in all respects at that trial, except as to the land within the boundary of what is known in the case as the Brite grant, containing 300 acres. When the case was heard the last time, the court held that the new trial was limited by the order of this Court, though general in its terms, to the Brite grant, and that the defendant could not reopen issues upon which he had lost at the former trial, and to this ruling defendant excepted. We think the Court erred in thus restricting the new trial. Our order, as we have said, was general in its terms, and extended to all the matters involved in the case. We were not asked to limit the new trial to any particular question, and did not do so. This Court, upon application, can grant a general or a partial new trial, as it may see fit under all the circumstances; but when a new trial is granted, nothing more being said, it means a new trial of the whole case — of all the issues, and not merely of one of them, or, as in this case, of a part of one. The new trial refers to the issue and is (253) not restricted by the answer to the issue, unless the Court, in the order, confines its scope to a particular issue or a particular question.
It is settled beyond controversy that it is entirely discretionary with the Court, Superior or Supreme, whether it will grant a partial new trial. It will generally do so when the error, or reason for the new trial, is confined to one issue, which is entirely separable from the others and it is perfectly clear that there is no danger of complication. Benton v.Collins,
Thee [There] is one question we must decide before remanding the case. The plaintiff offered as evidence a deed from A. C. Avery and wife to John Cheever, dated 27 August, 1878, and defendant objected to it upon the ground that while the probate, as appears by the annexed certificate, is full and correct in form, there was no fiat or order of the clerk of the court, D.C. Pearson, for the registration thereof. The objection was overruled and the deed admitted. Defendant excepted. We think the ruling was correct. The statute does not seem to require an order to registration when the deed is proven before the clerk, but merely a certificate of the proof. Revisal, sec. 1004. When he passes upon a probate taken by some other officer, he must certify to the correctness of the probate and the certificate, and order the instrument to be registered (Revisal, sec. 999) according to the form prescribed by Revisal, sec. 1001, or one substantially the same.
The court excluded a copy of the will of George Hice, Sr., certified by W. S. Sudderth, clerk of the county court, to be a true and correct copy of his will on 12 November, 1855. The handwriting of Sudderth was duly proven by the examination of L. A. Bristol. The defendant then offered the minute-book of the county court, from which it appeared that the will of George Hice, Sr., had been offered for probate by his executor, G. W. B. Hice, who appeared by his attorney, W. W. Avery, and that a caveat filed thereto by Elizabeth Hice and an issue of devisaviet vel non ordered to be made up, which was done, and the case docketed for trial. The caveat was afterwards withdrawn and the executor qualified. Then appears this entry: "By consent of parties, the defendant, Elizabeth Hice, is permitted to withdraw the issue heretofore made in this case and confess judgment for the costs heretofore incurred. Whereupon the executor, George W. B. Hice, offered for probate the last will and testament of George Hice, which was duly proven by the oath of John Parks and Thomas Carleton, the two subscribing witnesses thereto, according to law. And the said G. W. B. Hice took the sundry oaths as executor, and letters testamentary issued. The said Elizabeth Hice, widow of George Hice, came into court in proper person and entered her dissent to the provisions of the said will, and refused *214 (255) to accept the legacy therein given her, and filed her petition for her year's allowance, which is granted. (See trial docket.)"
We are inclined to the opinion that the certified copy, as authenticated by the entries on the records of the court, was competent evidence of the due execution of the will, and that it should have been admitted. The plaintiff objected to it upon the ground that it did not appear by the records or the copy of the will that the two subscribing witnesses, named in the entry we have set forth, actually subscribed as witnesses in the presence of the testator, though it is admitted that it sufficiently appears that George Hice, Sr., signed the will in their presence. It is not stated expressly in the entry that he so signed the will, but only inferentially from the words, "which was duly proven by the oath of John Parks and Thomas Carleton, the two subscribing witnesses, according to law," and we do not see why the other fact may not as well be inferred from those words. They could not well be subscribing witnesses unless he signed or acknowledged his signature in their presence, and they, as witnesses, subscribed it in his presence. Revisal, sec. 3113; In re Snow's Will,
We must regretfully order another trial of this much litigated case, because of the error in restricting the last trial to the consideration only of rights arising under the Brite grant.
New trial. *215
PLAINTIFF'S APPEAL.
Addendum
As we have ordered a new trial of this case in the consideration of the defendant's appeal, it is useless to pass upon the alleged errors which are assigned in the plaintiff's appeal. The rulings may be different on the next trial and the case presented in an entirely different aspect. Besides, the plaintiff will derive from the new trial granted in the other appeal all the advantage he now seeks. The whole matter is reopened for a new investigation, and we can do no more than this for him, should we review the rulings of the court to which he has excepted. If we sustained any one or all of his assignments, the result would be the same as it is now — that is, a new trial. We must, therefore, take the usual course in such cases and dismiss the appeal.
Appeal dismissed.
Cited: Buchanan v. Hedden,