Jarrett v. Trunk Company.

Walker, J., after stating tbe case: Tbe defendant’s counsel contended that tbe order of tbe Judge setting aside tbe verdict was improper because there was no apparent error in law committed at tbe trial, and it is not stated in tbe record whether or not it was made in tbe exercise of bis judicial discretion, and for this position they rely on tbe recent decision of this Court in Abernethy v. Yount, 138 N. C., 337. It is held in that case that tbe Judge, when he sets aside a verdict, should state whether or not it is done in tbe exercise of bis discretion; and, after mature reflection, we reaffirm that principle, which still commends itself to our judgment as tbe only safe and fair procedure in such cases. It is so easy to do, and so manifestly in tbe interest of common justice to tbe party against whom tbe ruling is made, and, too, it will meet with such favor and cheerful acquiescence on tbe part of tbe Judges who preside at trials, as we are persuaded to believe, that we can now perceive of no good reason why tbe rule should be disturbed. Tbe reasons for its adoption have been so well stated by Mr. Justice Gonnor in tbe case cited, which now appear to us as conclusive, that we will not undertake any elaboration of them in further vindication of what we there decided. One sufficient ground upon which tbe rule can well rest is that tbe defeated party is entitled to know whether be lost by reason of some error in law committed during tbe trial or merely by tbe exercise of tbe Judge’s discretion, to tbe end that, in tbe former case, be may proceed *469 to test tbe validity of tbe Tilling as it involves a matter of law or legal inference and, in tbe latter, tbat be may submit to tbe ruling and avoid any further useless contest, as it is not a reviewable matter. Tbe discretion of tbe Judge to set aside a verdict is not an arbitrary one, to be exercised capriciously or according to bis absolute will, but reasonably and with tbe object solely of preventing wbat may seem to him an inequitable result. Tbe power is an inherent one, and is regarded as essential to tbe proper administration of tbe law. It is not limited to cases where tbe verdict is found to be against tbe weight of tbe evidence, but extends to many others. Bird v. Bradburn, 131 N. C., 488. Judicial discretion, said Coke, is never exercised to give effect to tbe mere will of tbe Judge, but to tbe will of tbe law. Tbe Judge’s proper function, when using it, is to discern according to law wbat is just in the premises. ^Discernere per legem quid sit justumB Osborn v. Bank, 9 Wheat., 738. When applied to a court of justice, said Lord Mansfield, discretion means sound discretion guided by law. It must be governed by rule, not by humor; it must not be arbitrary, vague and fanciful, but legal and regular. 4 Burrows, 2539. While tbe necessity for exercising this discretion, in any given case, is not to be determined by tbe mere inclination of tbe Judge, but by a sound and enlightened judgment, in an effort to attain tbe end of ail law, namely, tbe doing of even and exact justice, we will yet not supervise it, except, perhaps, in extreme circumstances, not at all likely to arise; and it is therefore practically unlimited. In this case tbe defendant can derive no benefit from tbe decision in Abernethy v. Yount, as tbe question raised by its exception is not presented on tbe record alone, but a case on appeal has been.settled by tbe Judge upon disagreement of counsel, and it appears therefrom tbat tbe Judge exercised bis discretion in a perfectly proper manner. Tbe findings of *470 the jury, it is true, may not be conflicting, and, in legal effect, they may amount to a verdict for the defendant, as contended by the defendant’s counsel; but bis Honor thought they sufficiently indicated that the jury must have misunderstood the charge, or the case, and for that reason, or in some other way, there had been a miscarriage of justice. Besides, he found that the verdict as to the second issue was against the weight of the evidence and that the damages, were insufficient. This was nothing but the exercise of the legitimate power of the Court to set aside a verdict. The discretion confided to the Judge, when thus used, is, of course, not reviewable. But if it could be revised, we can discover nothing reversible in the ruling upon the facts, as stated in the record and in the case, treating the latter as supplementing the record entries. The case contains a full statement of the reasons which induced the action of the Court, and we find them amply sufficient to justify the order. Unless we looked into the case on appeal, it would not appear that the defendant ever moved for judgment upon the verdict as rendered, for the record does not show it. One of the most delicate and responsible duties of all those the Judge must perform is the use of his discretion in passing upon the rights of litigants, when he has no fixed and certain rule for his guidance, but is left, as Judge Gaston once expressed it, “to his own notions of fitness and expediency”- and while, perhaps, discretion should always be exercised sparingly, and surely not unnecessarily, yet the duty of using it is one the law requires of him, and which he should perform with firmness and without hesitation, in all cases where he deems it necessary to execute justice and maintain the right. No Error.