Farris v. First Citizens Bank & Trust Co.

2 S.E.2d 363, 215 N.C. 466, 1939 N.C. LEXIS 294

• Court: Supreme Court of North Carolina
• Decided: April 19, 1939
• Status: Published

Opinion

Per CraiAM.

A motion for new trial on the ground of new evi-' dence, discovered during the trial term, is addressed to the discretion of the trial judge, and his decision, whether granting or refusing to grant the new trial, when made in the exercise of such discretion, is not ordinarily subject to review. S. v. Casey, 201 N. C., 620, 161 S. E., 81; Bullock v. Williams, 213 N. C., 320, 195 S. E., 791, and numerous other decisions of this Court. But where, as here, the court allows such motion of plaintiff as a matter of law without the exercise of discretion, the defendants are entitled to have the motion reconsidered and passed upon as a discretionary matter. See Tickle v. Hobgood, 212 N. C., 763, 194 S. E., 474, where similar procedure was followed with respect to the denial as a matter of law of an application for a bill of particulars.

In the present case, the motion, having been timely made, and kept alive by appeal, may be considered at a succeeding term. S. v. Casey, supra, and cases there cited. Therefore, the case is remanded to the court below for further proceedings in accordance with this opinion.

Error.