Welch v. Kearns

Supreme Court of North Carolina

Welch v. Kearns

134 S.E.2d 155, 261 N.C. 171, 1964 N.C. LEXIS 423

CourtSupreme Court of North Carolina

DecidedJanuary 17, 1964

Docket393

StatusPublished

Cited by11 cases

This text of 134 S.E.2d 155 (Welch v. Kearns) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Welch v. Kearns, 134 S.E.2d 155, 261 N.C. 171, 1964 N.C. LEXIS 423 (N.C. 1964).

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Opinion

Higgins, J.

The facts are fully set forth by 'the Chief Justice. See 259 N.C. 367. In the first instance -the Clerk Superior Court had awarded the Commissioner $7,000.00 for his services. On appeal, the Superior Court Judge concluded as a matter of law that commissions were governed 'by G.S. 28-170, could not exceed five per cent, and reduced the 'allowance to- $3,500.00. The Commissioner appealed.

This Court held that G.S. 1-408 — not G.S. 28-170 — controlled, and remanded the proceeding for trial de novo before the judge holding the Superior Court of Davidson County. That decision is the law of tire case. When Judge Gambill, on the de novo hearing, in his discretion, fixed $5,'500.00 as just and reasonable compensation, his decision can only be set aside for abuse of discretion. “The rule is universal that the 'action of the 'trial court ais to matters within its judicial discretion will not 'be disturbed unless there is ia clear abuse thereof; or, as it is frequently stated, the appellate court will not review the discretion of the trial court. This rule, or rather this statement of the rule, does not give the -trial judge 'am entirely free hand in what might be termed discretionary matter®. The exercise of judicial discretion which may not be reviewed implies conscientious judgment, not arbitrary action, takas account of tire law and the particular circumstances of the case, 'and is directed by the reason and conscience of the judge toward a just result." 3 Am. Jur., Appeal and Eirror, § 959.

The judgment 'challenged by this appeal is

Affirmed.

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Higgins, J.

The facts are fully set forth by 'the Chief Justice. See 259 N.C. 367. In the first instance -the Clerk Superior Court had awarded the Commissioner $7,000.00 for his services. On appeal, the Superior Court Judge concluded as a matter of law that commissions were governed 'by G.S. 28-170, could not exceed five per cent, and reduced the 'allowance to- $3,500.00. The Commissioner appealed.

This Court held that G.S. 1-408 — not G.S. 28-170 — controlled, and remanded the proceeding for trial de novo before the judge holding the Superior Court of Davidson County. That decision is the law of tire case. When Judge Gambill, on the de novo hearing, in his discretion, fixed $5,'500.00 as just and reasonable compensation, his decision can only be set aside for abuse of discretion. “The rule is universal that the 'action of the 'trial court ais to matters within its judicial discretion will not 'be disturbed unless there is ia clear abuse thereof; or, as it is frequently stated, the appellate court will not review the discretion of the trial court. This rule, or rather this statement of the rule, does not give the -trial judge 'am entirely free hand in what might be termed discretionary matter®. The exercise of judicial discretion which may not be reviewed implies conscientious judgment, not arbitrary action, takas account of tire law and the particular circumstances of the case, 'and is directed by the reason and conscience of the judge toward a just result." 3 Am. Jur., Appeal and Eirror, § 959.

The judgment 'challenged by this appeal is

Affirmed.

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Bluebook (online)

134 S.E.2d 155, 261 N.C. 171, 1964 N.C. LEXIS 423, Counsel Stack Legal Research, https://law.counselstack.com/opinion/welch-v-kearns-nc-1964.

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