Hall v. . Landen

Pee Otjeiam. Plaintiffs declared on certain notes, one of them secured by mortgage on land, executed by J. F. Landen and bis wife, Emily S. Landen. Upon tbe death of J. F..Landen pending tbe action bis administrator, G. F. Landen, and bis heirs, were made parties defendant. Liability on tbe notes was denied. When tbe cause came on for trial, at tbe close of plaintiffs’ evidence, nonsuit was ordered as to all defendants *234 except G. F. Landen, administrator. In response to issues submitted tbe jury found, (1) that plaintiffs were owners and holders of two of the notes, (2) that no credits had been made thereon by J. E. Landen, .and-(3) that plaintiffs were not entitled to recover of G. E. Landen, administrator, on said notes. Plaintiffs moved to set aside the verdict on the third issue and for judgment on the other issues, or for judgment notwithstanding the verdict. After hearing argument, the court, in its discretion, set aside the verdict and the order of nonsuit, and ordered a new trial on the entire case. Under the circumstances, we think the exercise by the judge below of his discretion to set aside the verdict and the order previously entered during the trial may not be successfully challenged. The exercise of a discretionary power in the absence of allegation or suggestion of abuse is not reviewable on appeal. Bird v. Bradburn, 131 N. C., 488, 42 S. E., 936; Brantley v. Collie, 205 N. C., 229, 171 S. E., 88; Jones v. Ins. Co., 210 N. C., 559, 187 S. E., 769. Appeal dismissed.