Alligood Ex Rel. Alligood v. Shelton

DeviN, J. It was within the power of the trial judge in the exercise of his sound discretion to set aside the verdict of the jury, in whole or in part. G. S., 1-207. “The discretionary action of the trial court in . setting aside the verdict on the issue of damages because excessive or contrary to the weight of the evidence is not appealable in the absence of a denial of some legal right. C. S., 591; Anderson v. Holland, 209 N. C., 746, 184 S. E., 511; Bailey v. Dibbrell Mineral Co., 183 N. C., 525, 112 S. E., 29; Goodman v. Goodman, 201 N. C., 808, 161 S. E., 686. It was likewise a matter of discretion as to whether the verdict should be set aside in whole or in part. Geer v. Beams, 88 N. C., 197.” Haw-ley v. Powell, 222 N. C.,- 713, 24 S. E. (2d), 523. But the refusal of plaintiff’s motion for another trial on the issue so set aside was the denial of a right to which she was entitled. Hence, the ruling of the court on this point must be held for error. Panel Co. v. Ipoch, 217 N. C., 375, 8 S. E. (2d), 243; Bird v. Bradburn, 131 N. 0., 488, 42 S. E., 936. While it appears from the record that subsequent to the trial and entry of judgment the defendants paid the full amount of the judgment rendered on the remaining issues, and that plaintiff accepted same, we do not regard this as requiring this Court ex mero motu to dismiss the plaintiff’s appeal. There was no motion to dismiss the appeal on this ground. The judgment was rendered for the aggregate of the amounts determined by the answers to the 3rd, 4th and 8th issues. The amounts fixed by the jury in answer to those issues were acceptable to both sides and were no longer in dispute, but there was no judgment on the 9th issue. The defendants’ payment of the amount of the judgment on the issues determined had the effect of stopping interest. There is nothing-in the record to show thát payment was intended or accepted as a settlement of the entire claim of plaintiff, who is under age, or for more than the sums set out in the judgment. Garland v. Improvement Co., 184 N. C., 551 (556), 115 S. E., 164; Blanchard v. Peanut Co., 182 N. 0., *757 20, 108 S. E., 332; Mercer v. Lumber Co., 173 N. C., 49, 91 S. E., 588. Tbe acceptance thereof by tbe plaintiff under these circumstances we do not think should be held to preclude her from a trial on the issue as to which the verdict was set aside. There was error in the denial of plaintiff’s motion for a new trial on the 9th issue, and the ruling of the trial court in that respect is Reversed.