Oak Hall Clothing Co. v. Bagley

60 S.E. 648, 147 N.C. 37, 1908 N.C. LEXIS 7

Opinion

BkowN, J.

The defendant moves to dismiss the appeal because no case on appeal has been served. The plaintiff contends that, without any case on appeal, there is error apparent upon the record, and that his Honor, Judge Biggs, should have rendered judgment in plaintiff’s favor upon the issues, and assigns such refusal as error. His Honor had no right to set aside the verdict at the succeeding June Term, although the said Judge held both terms, unless the parties to the action had consented to the continuance of such motion to the June Term. At June Term the Judge finds as a fact that such consent had been duly given at March Term, and that finding, entered of record, is practically an amendment of the record at March Term.

We cannot review the exercise of his Honor’s discretion in granting a new trial upon the ground that the verdict is against tbe weight of tbe evidence. Nor can we review tbe correctness of bis instruction to tbe jury, in tbe absence of a case on appeal duly served and settled. TJpon tbe face of tbe record before us, we find no error in bis Honor’s denial of plaintiff’s motion for judgment. Let tbe costs of this Court be taxed against tbe plaintiff.

No Error.