
    GEORGE LIKAS et al. v. ELLA M. LACKEY et al.
    (Filed 7 November, 1923.)
    1. Appeal and Error — Objections and Exceptions — Courts—Verdict Set Aside — Presumptions.
    Where the trial judge sets aside a verdict without stating his grounds therefor, upon exception on appeal he will be presumed to have done so as a conclusion of law, from which an appeal immediately lies.
    
      2. Same — Burden of Proof.
    An exception to the order of the court setting aside a verdict is alone insufficient to have the matter reversed on appeal, the presumption being that the order was correct in law, and the burden upon appellant to show error.
    3. Same — Trials—Pending Appeal — New Trials.
    Where the cause has been tried at a previous term of the court, and the judge has set aside the verdict under the appellant’s exception, and, pending his due prosecution of his appeal, without laches on his part, the judge has forced him into another trial under his exception that the case was pending on appeal, resulting adversely to him, the action of the judge in overruling the exception and proceeding with the second trial is contrary to our statutes (0. S., sec. 655), and a new trial will be ordered on appeal.
    Clark, C. J., dissenting.
    Civil action tried before Devin, J., and a jury at March Term, 1923, of CUMBERLAND. •
    The parties signed a paper-writing purporting to be a lease from the defendants to the plaintiffs for a storehouse in Hamlet. The plaintiffs brought suit to recover damages for the defendants’ breach of the contract in failing to giye possession of the property. The material facts are stated in the opinion.
    
      Cook & Cook and W. 0. Doivning for plaintiffs.
    
    
      Dye & Clark for defendants.
    
   Adams, J.

The case was first tried at the February term and resulted in a verdict for the defendants. "Without assigning any reason at the time, the court of its own motion set aside the verdict, and the defendants excepted and appealed. The case on appeal was duly served, and there was no exception or eounterstatement. At the March term the case was again called for trial, and the defendants objected to proceeding on the ground that their appeal was pending; whereupon his Honor held that the appeal was dilatory and did not constitute a sufficient cause for continuánce. To this ruling the defendants noted an exception and the case was tried the second time, resulting in' a verdict for the plaintiffs. The defendants again excepted and appealed.

When the first verdict was returned, the following entry was made: “The court of its own motion sets the verdict aside in the above.”

In several decisions it has been held that a judge in setting aside a verdict should assign his reason for doing so, and if no reason be given, his action will be ascribed, not to discretion, but to a conclusion of law from which an immediate appeal may be taken. Abernethy v. Yount, 138 N. C., 338; Jarrett v. Trunk Co., 142 N. C., 466; Drewry v. Davis, 151 N. C., 295. In the statement of tbe case on tbe second appeal, bis Honor assigned tbe exercise of discretion as tbe ground upon wbicb tbe first verdict was vacated, and if tbis entry bad been made a part of tbe original order bis Honor would bave been justified in disregarding tbe first appeal; but tbe second trial occurred after tbe first appeal bad been taken and while it was pending, and tbe subsequent entry as to tbe court’s discretion, made after tbe adjournment of tbe February term, could iiot deprive tbe defendants of tbeir right to test in tbe appellate court tbe validity of tbe order as it was originally made setting aside tbe first verdict.

There were two trials, and there are two statements of case on appeal. In tbe first statement tbe only assignment of error is tbe action of tbe court in vacating tbe first verdict. Tbe exception cannot be sustained because, as held in Drewry v. Davis, supra, it was incumbent upon tbe appellants to show error in tbe order, tbe presumption being in favor of its validity. Powers v. Wilmington, 177 N. C., 361. Tbe record of tbe first trial was not sent up as a part of tbe case on appeal; it does not appear whether the defendants excepted to tbe admission or rejection of evidence or to any of tbe instructions to tbe jury or to anything that occurred during tbe trial. Tbe defendants’ assignment of error is •not sufficient to rebut tbe presumption that tbe order was correct or to show that bis Honor was in error. In Drewry v. Davis, supra, it is said: “In those cases where tbe rule applies, both parties bave tbe right to appeal — the one to sustain tbe ruling and, if not sustained, to bave tbe court pass upon any exceptions taken by him during tbe trial and duly assigned as error; tbe other to convince tbis Court of tbe error of tbe trial judge. Tbis course was followed in Cole v. Laws, 104 N. C., 651, and Metal Co. v. R. R., 145 N. C., 293.” In Abernethy v. Yount, supra, exceptions to tbe introduction of evidence appeared in tbe case on appeal, and it was suggested that if other exceptions were taken at tbe trial tbe appellant should bave put them in tbe record.

But there is sufficient reason for granting a new trial. "When tbe case was called at tbe March term tbe defendants excepted to the court’s ruling that tbe first appeal was dilatory and that tbe case should be tried unless there was other cause for a continuance. Tbis exception, we think, is meritorious. It is supported by tbe principle stated in Pruett v. Power Co., 167 N. C., 598. There tbe defendant appealed to tbe Supreme Court from an order deuying its petition to remove tbe case to tbe Federal Court on tbe ground of diversity of citizenship. Pending tbe appeal, tbe cause was tried in tbe Superior Court, tbe defendant retaining its rights under tbe petition. On appeal tbe order denying the motion for removal was affirmed, but on appeal from tbe final judgment it was field tfiat tfie lower court was witfiout power to fiear and determine tfie issues arising on tfie pleadings pending tfie appeal, and tfiat tfie verdict and judgment sfiould be set aside. Tfiis decision is controlling in. tfie instant case. When tfie defendants appealed from tfie order setting aside tfie verdict and granting a new trial, further proceedings sfiould have been stayed until the appeal was determined. C. S., see. 655.

It is true tfie first appeal was not docketed in tfie Supreme Court at tfie time of tfie second trial, but tfie statement was served on II March, and two days later, on tfie first day of tfie next term, fiis Honor made tfie ruling of which tfie defendants complained. It seems tfie second trial took place before tfie time had expired for perfecting tfie appeal in tfie appellate court, and under these circumstances laches can hardly be imputed to tfie defendants.

Tfie verdict and judgment entered of record at tfie second trial are set aside and a new trial is awarded.

New trial.

Clark, C. J.,

dissenting: Up to and including-tfie case of Bird v. Bradburn, 131 N. C., 490, it was field uniformly, in all our opinions, tfiat “where tfie trial judge sets aside tfie verdict witfiout giving a reason, if no reason is given, it is presumed tfiat a new trial was granted as a matter of discretion, and tfie appeal will be dismissed.” Braid v. Lukins, 95 N. C., 123; S. v. Braddy, 104 N. C., 137, quoting other cases, and tfiis case itself has been cited with approval. See citations in the Annotated Edition.

In Abernethy v. Yount, 138 N. C., 338, tfie Court for tfie first time, by a division of three to two, field tfiat when tfie judgment is set aside witfiout any statement by tfie judge, it was an error for which a new trial would be granted. Tfiis was not only a departure from tfie uniform decisions of tfie courts down to that time, which are cited in tfie dissenting opinion in profusion by tfie two dissenting judges, who added (p. 346), as a matter of reason as well as of precedent, tfie following: “Tfie presumption always is in favor of tfie correctness of tfie trial below, and he who alleges error must assign and show error. This is elementary. If tfiis new trial was granted as a matter of discretion, there could be no error. If it was granted for error in law which tfie judge thought fie had committed, it would be a reviewable question to decide whether or not there was error committed by him. If it does not appear upon which ground tfie court put its action, and appellant’s counsel did not ask tfiat it sfiould be stated, it will be presumed tfiat .there was no error, and that the judge did what he had a right to do and granted a new trial in his discretion. Besides, if the new trial was granted for error in law, committed by the judge, it is absolutely necessary that the judge find the facts; otherwise, it cannot be seen whether he did or did not in fact commit error of law. To reverse the judgment Avithout such finding is to order a final judgment below when not appealing — he had no chance to file exceptions. He has had no showing-on this appeal — no day in court. When the judge puts his ruling upon the ground that he committed an error of law he finds the facts, and the alleged error of law is presented. This has been the case in every instance where an appeal has been taken because the judge below granted a iioav trial upon a matter of law.” The reasons in full and citations of the uniform decisions are stated by the two dissenting judges in that case, 138 N. C., 346-350. On the other hand, in no case which has come up to the Court since has Abernethy v. Yount been squarely approved on this point, though cited on other points. In that case the defendant, appellee, was so satisfied that the uniform precedents of this Court and others would be followed that he was not even represented by counsel, and his side was not presented or argued.

Not only have the rulings of the Court since that time not been directly approved, but in this present case, when the new trial was granted by Judge Devin and came before the same judge at the next term when the case was called, he found as a fact that while on the record at the first trial he assigned as grounds for setting aside the Arerdict that he did so “on his own motion,” he finds as a fact that he set it aside.as a matter of discretion and to make the record speak the truth, it was eminently proper he should correct the record.

It follows, therefore, that if the grounds of his ruling had been asked for when the first verdict was set aside or any exception taken he Avould have stated that it Avas done as a matter of discretion. There Avas properly, therefore, an absolute new trial at the second term, and no wrong Avas done. Neither side should have taken any adArantagc from anything that was done at the former trial.

But to impute to him that he set aside the former verdict as a matter of law, when the same judge finds as a fact that it was not so set aside, puts the appellee in the present case at a disadArantage which he should not bear. The record states that when the first verdict Avas returned the following entry Avas made: “The court of its ovm motion sets the, verdict aside in the above case.” The judge also finds on this trial that as a matter of fact the verdict was set aside in the first case in his discretion. The record in the first trial was not sent up as a part of the case on appeal, but the defendants did not except to the admission or rejection of evidence or to any instructions to the jury or to anything that occurred during tbe trial. As tbe majority opinion in tbis case states tbe defendants’ assignment of error is not sufficient to rebut tbe presumption tbat tbe order was correct or to show tbat bis Honor was in error.

Under all tbe precedents, other tban tbe opinion by a divided Court in Abernethy v. Yount and tbe two or three cases tbat have partially followed it, tbe first attempted appeal was a nullity, for none lay from setting aside a verdict unless it was stated to have been done “for error of law.”

Under Abernethy v. Yount, if tbe verdict was set aside, without stating it was done in tbe discretion of tbe judge, it was appealable unless no facts are found, in which case it is not, and tbat is tbe case here, and it is in tbe same condition exactly as if it were stated to be set aside “in tbe discretion of tbe court.” So what is tbe difference?

Even under Abernethy v. Yount, tbe first appeal in tbis case was a nullity, for tbe judge who tried both cases finds, as a fact, tbat be set it aside “in bis discretion”; and, besides, be bad power, considered only as trial judge in tbe second trial, to “correct tbe record to speak tbe truth” or to find tbe facts, as be does, of what occurred on tbe first trial.

And even tbe majority opinion in tbis case bolds tbat tbe setting aside of tbe verdict in tbe first case must be sustained; so, in any event and from every point of view, there was no verdict standing to prevent tbe second trial, and tbe judge was correct in so bolding.

Tbe exceptions on tbe second trial, which are before us, therefore, should be considered and decided. Technicalities no longer should interfere with tbe trial of cases on their merits to tbe increase of useless costs and unnecessary delays.  