Wachovia Bank & Trust Co. v. Ebert

CONNOR, J. The defendants at the trial of this action in the Forsyth County Court admitted the execution of the note set out in the complaint as alleged therein. There was no controversy between the plaintiff and the defendants with respect to the answer to the first issue. This issue was answered by the jury, “Yes (by consent).” For this reason, defendants’ assignments of error, on their appeal to the Superior Court, Nos. 1, 2 and 4, with respect to the trial of the first issue, were properly overruled. Conceding without deciding that there were errors with respect to the trial of this issue, as contended by defendants, such errors were manifestly not prejudicial to the defendants, and for that reason did not entitle them to a new trial. The burden on the second issue, the answer to which is determinative of the action, was on the defendants. For this reason, there was no error in the refusal of the trial court to allow defendants’ motion for judgment as of nonsuit at the close of the evidence, or in the instruction of the court to the jury to that effect. Stockton v. Lenoir, 201 N. C., 88, 158 S. E., 856. By their third assignment of error on their appeal to the Superior Court, the defendants presented their contention that there was error in the exclusion of testimony offered by them for the sole purpose of impeaching a witness who had testified for the plaintiff. This testimony was pertinent only to the first issue. For this reason, conceding but not deciding that the exclusion of this testimony was error, such error was not prejudicial to the defendants, and for that reason did not entitle them to a new trial. In the Superior Court, this assignment of error was sustained, and for that reason the judgment of the county court was reversed, and the action remanded for a new trial. In this there was error, as contended by plaintiff on its appeal to this Court. Defendants’ assignment of error No. 3, on their appeal to the Superior *653 Court should have been sustained, and the judgment of tbe county court should have been affirmed. The motion of the defendants in the Superior Court for a new trial for newly discovered evidence was properly denied. The affidavits filed by the defendants in support of their motion fail to disclose sufficient grounds for a new trial for newly discovered evidence. Ordinarily this motion is addressed to the discretion of the trial court, and is not subject to review by the appellate court. An examination of the record in this appeal discloses no error of law in the trial court for which the defendants were entitled to a new trial. The jury found from evidence and under instructions to which there were no objections or exceptions that the payee of the note which defendants executed and delivered to him did not in his life time cancel and surrender the note to them. The defendants failed to sustain the only defense offered by them to plaintiff’s recovery in the note. The judgment of the Superior Court reversing the judgment of the county court and remanding the action to said court for a new trial, is Reversed.