87 N.C. 31 | N.C. | 1882
The numerous adjudications heretofore made, that this court will not revise and reverse the exercise of a power committed to the discretion of the judge of the superior court, would seem to render superfluous any discussion or reference to precedents, and the granting or refusing a motion for a new trial, not involving the determination of a question of law, it is well settled, belongs to this class and is not subject to review on appeal.
"The new trials which have been awarded here," is the language of HENDERSON, J., in Bank v. Hunter,
In answer to an argument for the revisal of a judgment, on the ground ofsurprise, the same judge declares that "it is matter addressed to the discretion of the judge below, over which we have no control." Lindsey v.Lee, Ib., 464.
SO GASTON, J., declares in State v. Miller,
The distinction is noted in Moore v. Edmiston,
It is true an appeal lies under C. C. P., Sec. 299, from the (34) granting or refusing a new trial and the ruling will be revised, but it is allowed only when the action of the court is one "involving a matter of law and legal inference," and not the exercise of a discretionary power.
In accordance with this section, this court in Bryan v. Heck,
The court in the present case, while reporting the evidence, declares the case to be one of surprise, injurious to the defendants, and awards a new trial as, in its judgment, under the circumstances, due to the defendants. It will not therefore be disturbed, and the appeal must be dismissed.
PER CURIAM Appeal dismissed.
Cited: Carson v. Dellinger,