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Abernethy v. Yount

Supreme Court of North Carolina
May 1, 1905
50 S.E. 696 (N.C. 1905)


(Filed 9 May, 1905.)

Orders Granting New Trials — When Reviewable — Duty of Judge — Verdicts — Witness — Handwriting Expert — Evidence — Comparison of Signatures.

1. Where a verdict was rendered in favor of the plaintiff, and the trial judge declined to set it aside because of insufficient evidence, but granted a motion for a new trial, without any suggestion of a reason therefor: Held, that it was the duty of the judge to put upon the record whether he granted the motion in the exercise of his discretion or as a matter of law, and the plaintiff's exception to the refusal to enter judgment on the verdict is sustained.

2. The verdict of a jury is a valuable right of which a person may not be deprived, except in accordance with the law, and the action of a judge in setting it aside will not be ascribed to discretion unless he plainly says so, or there be no other explanation of his conduct

3. A witness who testified that he was a stenographer and typewriter, had studied penmanship, and was assistant to the clerk of the court, was qualified to testify as a handwriting expert.

4. A paper containing an admitted genuine signature need not be put in evidence to authorize its comparison by an expert with a signature the genuineness of which is in issue.

ACTION by A. S. Abernethy against D. E. Yount, heard by (338) McNeill, J., and a jury, at July Term, 1904, of CATAWBA.

Self Whitener for plaintiff.

No counsel for defendant.

CLARK, C. J., and HOKE, J., dissent.

The plaintiff brought suit in a justice's court against the defendant for the recovery of a note for $53.20. Upon appeal the cause was tried in the Superior Court upon the following issue: "Did the defendant execute and deliver the alleged note set out by the plaintiff as the cause of action?" The plaintiff testified that he bought the note from one A. S. Satterthwaite, and before it fell due paid full value for it; that no payment had been made thereon and that the defendant's name was signed to it; that he bought it without notice of any defense thereto. The defendant testified that he did not sign any note to Satterthwaite; that he signed an application for insurance; that Satterthwaite did not ask him to sign a note — nothing whatever was said about a note; that he never saw a note until the magistrate's trial. His application for insurance was turned down and he never received any policy. He admitted he signed an application for insurance which was shown him.

There was other testimony tending to show that the plaintiff purchased the note for value and without notice.

The plaintiff introduced LaFayette Huffman, who testified that he was a graduate of Lenoir College, had studied penmanship, and was assistant to the clerk of the court. The witness was shown the application for insurance, which the defendant admitted he had signed, and testified under the defendant's objection: "I think the signatures on the two papers are the same; it is the same handwriting, to the best of my knowledge." To this testimony the defendant excepted, for that (1) the witness had not been shown to have been an expert, (2) that the paper used as a standard of comparison should be first introduced in evidence, and (3) that the proposed standard of comparison was not a proper standard. The objection was overruled, and the defendant excepted. On cross-examination the witness said: "I never saw the defendant (339) write; will not swear that the defendant signed the note; it was possible that the signature on the note could have been forged."

The jury having answered the issue in the affirmative, the defendant moved to set aside the verdict as being against the weight of evidence. Motion refused, and defendant excepted. Motion by defendant for new trial, which motion was allowed, and the plaintiff excepted, assigning as error his Honor's order allowing the defendant's motion for a new trial and refusing to enter judgment on the verdict. Plaintiff appealed.

After stating the facts: The Code, section 412, provides that the judge who tries the cause may in his discretion entertain a motion, to be made on his minutes, to set aside a verdict and grant a new trial upon exceptions, or for insufficient evidence, or for excessive damages. We understand the first cause "upon exceptions" to refer to exceptions made upon the record during the trial, as for admitting or rejecting testimony, giving or refusing to give instructions, or other action of the judge. For granting or refusing to grant such motion, "involving a matter of law or legal inference," an appeal lies to this Court. Thomas v. Myers, 87 N.C. 31. For granting or refusing a motion to set aside the verdict, or granting a new trial for insufficient evidence or excessive damages, no appeal lies. This can be done only during the term. It is held in Benton v. Collins, 125 N.C. 83, that power is given the judge by this section to set aside a verdict and grant a new trial for inadequacy of amount of damages. He may also exercise the power to set aside the verdict and judgment under the provisions of section 274. This may be done during the term or within one year thereafter. Quincey v. Perkins, 76 N.C. 295.

(340) In addition to these causes, the judge may in his discretion set aside a verdict and order a new trial during the term for any cause which casts suspicion upon the verdict, such as misconduct of jurors or other officers of the court or the parties or witnesses. After enumerating the causes which entitle a party aggrieved to have the verdict set aside as a matter of right, Bynum, J., says: "All other circumstances of suspicion address themselves exclusively to the discretion of the presiding judge in granting or refusing a new trial. He is clothed with this power because of his learning and integrity, and of the superior knowledge which his presence at and participation in the trial give him over any other forum." Moore v. Edmiston, 70 N.C. 471. The line which divides the cases in which the party aggrieved may as a matter of right demand that a verdict be set aside, from those in which the question rests in the discretion of the judge, was marked, after full discussion, by those two eminent and learned sages of the law, Ruffin and Gaston, in S. v. Miller, 18 N.C. 500. The view of the majority of the Court in that case has been uniformly adopted and followed by this Court. S. v. Tilgham, 33 N.C. 513; Moore v. Edmiston, supra. We have no disposition to question its soundness or limit its operation further than is done in that and other cases. We fully recognize the necessity, and therefore the wisdom, of vesting in the presiding judge the power to so regulate the proceedings of the court over which he presides that such order, decorum, and observance of the fixed rules of procedure be enforced as becomes the dignity of the court and secures fair and impartial trial of causes.

We think, however, that it is in no degree inconsistent with or unduly restrictive of such power to hold that when the judge exercises it as a matter of discretion, as distinguished from a conclusion upon a "matter of law or legal inference," he so states on the record, to the end that parties may be advised respecting their right to have (341) his action reviewed. An examination of many cases which have been before this Court shows such to have been the practice. Referring the provisions of section 412 (4), Bynum, J., says: "Heretofore it has been the practice of Superior Courts, in granting new trials, not to put upon record the facts or reasons moving them thereunto, and we know of no rule of law requiring it to be done. But, now, to give parties the benefit of the above section of The Code, the courts should and no doubt will, on exceptions taken by the parties aggrieved, put upon the record the matters inducing the order granting as well as refusing a new trial. The appellate court can thus see whether the order presents a matter of law, which is the subject of review, or a matter of discretion, which is not. In this way only, it is conceived, can the full benefit of that provision of The Code be secured to suitors." Moore v. Edmiston, supra. It is stated in the opinion that the facts upon which the new trial is granted are set out. In Smith v. Whitten, 117 N.C. 389, it is said that it is the duty of the judge, upon request, to state upon the record the facts moving him to refuse or grant a new trial. A new trial was refused in that case. It would seem from the language of the Court that if no request was made, his failure to do so may not be made a basis of exception. It is not very clear from the report whether the motion was based upon section 412 (4). In Carson v. Dellinger, 90 N.C. 226, it appeared that the motion was made to set aside the verdict to enable the mover to introduce on another trial newly discovered testimony. This was clearly within the discretion of the judge. The cases cited fully sustain the conclusion. In S. v. Braddy, 104 N.C. 737, the "headnote" is misleading in stating, in general terms, the power of the court to grant a new trial. The language of Merrimon, C. J., is: "If, through inadvertence or mistake, he was about to suffer injustice, it lay in the sound discretion of the judge (342) who presided at the trial to grant a new trial." It was refused in that case. In Jones v. Parker, 97 N.C. 33, the motion was refused, the judge stating his reasons therefor. In S. v. Boggan, 133 N.C. 761, the facts were found by the judge; also in S. v. Daniels, 134 N.C. 761. In Brink v. Black, 74 N.C. 329, the motion was made and granted because the verdict was against the weight of the evidence. In Redmond v. Stepp, 100 N.C. 212 (219), the motion to set aside the verdict was because of insufficient evidence and newly discovered testimony; so in Edwards v. Phifer, 120 N.C. 406.

In Breaid v. Lukins, 95 N.C. 123, the record states that upon the return of the verdict a motion was made to set aside "because the verdict was irregular." The court refused judgment and the plaintiff excepted. The court set aside the verdict and granted a new trial. Merrimon, J., said: "Now, in the case before us it does not appear upon what ground the learned judge places his decision. He may have thought that the verdict was against the weight of the evidence, or that the price allowed for the lumber was excessive, or some other like cause may have prompted his action. The defendant, it is true, moved to set the verdict aside because it was irregular, but it does not appear that the court placed its decision upon that ground." In Bird v. Bradburn, 131 N.C. 488, the judge expressly states that in the exercise of his discretion he refused to set aside the verdict. It cannot be denied that the practice of the judges in this respect is not uniform, although in a large majority of the cases which we have examined the ground upon which the judge proceeded is set out; especially is this so where the power is exercised. In this connection we are impressed with the wisdom of the language of Judge Gaston in his dissenting opinion in S. v. Miller, 18 N.C. 540: "I see no alternative between a steady adherence to the law, which vitiates a suspected verdict, or leaving the question of its validity or invalidity to depend on the discretion of the presiding judge. To the adoption of the (343) latter branch of the alternative I have insuperable objections. It would be oppressive to the judge, dangerous to the community, and at variance with the settled principle of our law. It is impossible, indeed, not to confide discretion to judicial magistrates; but I am sure that, while every enlightened friend to free government holds unnecessary discretion to be tyranny, every conscientious judge will say that of all his duties none are so distressing as those wherein he can find no certain rule, but is left to his own notions of fitness and expediency. . . . The trial by jury — justly considered as the strongest security to the liberties of the people which human sagacity ever devised, as well as the happiest contrivance for cherishing among all an affectionate attachment to the laws, in the administration of which they act so important a part — must be kept under the protection of law, and not left under the patronage of its ministers. If the old rule be disregarded, new ones must be devised. To proceed wholly without rule would be intolerable; and the courts, for their own convenience as well as for the public order, would be obliged, as it seems that the judges in New York have done, to make rules." We are quite sure that his Honor was inadvertent to the right of the plaintiff to have him state whether he exercised the power to order a new trial as a matter of discretion or because of law or legal inference. If it be conceded that the practice in this respect has not heretofore been uniform, we think it should be made so in justice both to suitors and judges. We are quite sure that no judge desires to exercise his discretion when he can base his action upon fixed rules of law and legal procedure.

His Honor declined to set aside the verdict because of insufficient evidence, and, without assigning any other ground, a motion is made generally for a new trial, and granted. The plaintiff is thus deprived of his verdict, which by necessary implication from his (344) Honor's action is, in his opinion, justified by the evidence, without the slightest suggestion of any reason therefor. We cannot think this consistent with either the principles upon which our judicial system is founded or the practice of our courts. We do not question his Honor's power — if in the exercise of his sound discretion there had been on his part, or on the part of any other person connected with the case or the court, any irregularity or inadvertence, or any other like reason, by which the defendant had suffered injustice — to set the verdict aside. Nor do we suggest that such action would have been reviewable in this Court. We do think that his Honor should have informed the parties, and put upon the record, whether he granted the motion in the exercise of his discretion or as a matter of law or legal inference. The verdict of the jury obtained after, and as the result of, a judicial investigation, is a valuable right of which a person may not be deprived except in accordance with the law. Wood v. R. R., 131 N.C. 48. Arbitrary discretion is not a favorite in a system of jurisprudence and procedure based upon judicial precedent and written law. Of necessity, discretion must rest somewhere in the administration of the law, but it should be confined to the narrowest possible limits consistent with necessity.

We are not required in this case and, appreciating the delicacy of the question with which we are dealing and desiring to say no more than is necessary, we do not intend to say that when a judge exercises his discretion he must state the facts upon which his action is based. We simply hold that he should say, if the fact be so, that his act is controlled only by his discretion. This is but fair to the parties, just to the judge, and consistent with sound legal principles and precedent. Bird v. Bradburn, supra.

We are of opinion, however, that the learned and conscientious judge, who, we are sure, is duly sensible of and sensitive to the rights of litigants, did not grant a new trial as a matter of discretion. We do not think that the action of a judge should be ascribed to discretion (345) unless he plainly says so, or there be no other explanation of his conduct.

In this case we find that the defendant excepted to the introduction of testimony, and we conclude that upon reflection his Honor was of opinion that he had committed error in admitting such testimony. His Honor's action, viewed in this way, is appealable and subject to review. Wood v. R. R., supra. Rulings upon the trial are frequently brought here for review in this way. Was there error in the admission of the testimony? Huffman was examined as an expert; he said he was a stenographer and typewriter, had studied penmanship, and was assistant to the clerk of the court. The defendant contended that he was not qualified as an expert. It certainly would have been more in accord with the practice if his Honor had examined the witness regarding his competency as an expert and found the facts before permitting him to testify. Such finding is final, if there is any evidence to support it. S. v. Wilcox, 132 N.C. 1120; S. v. Secrest, 80 N.C. 450. We think the statement of the witness as to his opportunity for forming an opinion in regard to handwriting, sufficient under the ruling of this Court in Yates v. Yates, 70 N.C. 146; 1 Wigmore Ev., 570. It is further excepted for that the application for insurance, admitted to have the genuine signature, was not put in evidence. We do not think it was necessary to do so. His Honor's ruling is sustained by the decision in Fuller v. Fox, 101 N.C. 119, and other cases following.

We find no error in any of the rulings excepted to by the defendant. We have noticed the only exceptions which appear in the record. The charge of his Honor is not set out. If the defendant made other exceptions he should have had them put in the record. In their absence it will be presumed that the rulings of his Honor were satisfactory. We have examined the entire record with care, and see nothing to suggest error. The only issue submitted was in regard to (346) the execution of the note; that was found for the plaintiff. It seems to have been conceded, or at least there was no evidence to the contrary, that the plaintiff was the purchaser for value and without notice. If the defendant, however, by reason of the action of his Honor, had other exceptions in the record which he desires to have presented, we take it that he would be entitled upon a proper application to the writ of certiorari in lieu of an appeal.

His Honor did not, in terms, set aside the verdict, although he granted a new trial. The plaintiff was entitled to judgment. The Superior Court of Catawba County will proceed to render judgment on the verdict.


Summaries of

Abernethy v. Yount

Supreme Court of North Carolina
May 1, 1905
50 S.E. 696 (N.C. 1905)
Case details for

Abernethy v. Yount

Case Details


Court:Supreme Court of North Carolina

Date published: May 1, 1905


50 S.E. 696 (N.C. 1905)
138 N.C. 337

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