Salmon Ex Rel. Rogers v. McLean

21 S.E. 178, 116 N.C. 209

• Court: Supreme Court of North Carolina
• Decided: February 5, 1895
• Status: Published

Opinion

Claeic, J.:

A new trial can not be granted by a justice of the peace {The Code, 865), but in the cases mentioned in The Code, 845, a rehearing may be allowed. Froneberger v. Lee, 66 N. C., 333; Gambill v. Gambill, 89 N. C., 201; Guano Company v. Bridgers, 93 N. C., 439. Though the judgment was first rendered 12 April, 1887, a rehearing was granted and the new judgment was rendered 2 May, 1887. The statute ran from the 2 May because the first judgment was vacated by the rehearing. This action was begun April 30, 1894, which was within the seven years limited by statute. Oode, Sec. 153 (1). The defendant has no ground to complain, for the rehearing was granted on his motion. In instructing the jury that the judgment was barred, there was error.

Error.