Hennessee v. Cogburn

WEBB, Judge. The appellant advances three arguments as to why it was error to set the verdict aside and retry the case. These are (1) notice of the motion to set the verdict aside was not served on him, (2) Judge Hasty did not have the power to set the verdict aside at a term of court subsequent to the one at which the verdict was entered, and (3) when a final judgment was entered at the January 1977 term of court terminating the case, the court had no jurisdiction at a subsequent term to make a valid order. The second argument is closely related to the third. [629] The resolution of these questions depends on our Rules of Civil Procedure. Rule 59 of the North Carolina Rules of Civil Procedure says: “(a) Grounds. — A new trial may be granted to all or any of the parties and on all or part of the issues for any of the following causes or grounds: * * * (9) Any other reason heretofore recognized as grounds for a new trial. * * * (b) Time for motion. — A motion for a new trial shall be served not later than 10 days after entry of the judgment.” Rule 5(a) of the North Carolina Rules of Civil Procedure says: “(a) Service — when required. — [N]o service need be made on parties in default for failure to appear except that pleadings asserting new or additional claims for relief against them shall be served upon them in the manner provided for service of summons in Rule 4.” As to the appellant’s first argument, Rule 59(b) says that a “motion for a new trial shall be served not later than 10 days after the entry of judgment.” Rule 5(a) says “no service need be made on parties in default for failure to appear. . . .” We hold that Rule 59(a) when construed with Rule 5(a) means that service must be made within ten days when service is required. In this case service was not required under Rule 5(a) since the defendant was in default for failure to appear and the plaintiff did not assert a new or additional claim for relief. As to the appellant’s second and third arguments the motion to set the verdict aside was made within ten days of the entry of the verdict. Judge Hasty had the power under Rule 59(a)(9) to set the verdict aside in his discretion. Britt v. Allen, 291 N.C. 630, 231 S.E. 2d 607 (1977). We hold that he did not lose this power when the term of court ended. The defendant relies on Pruett v. Pruett, 247 N.C. 13, 100 S.E. 2d 296 (1957); Burton v. Reidsville, 243 N.C. 405, 90 S.E. 2d 700 (1956) and Johnston v. Johnston, 218 [630] N.C. 706, 12 S.E. 2d 248 (1940) as authority for the proposition that when a case has been finally determined a court has no power at a subsequent term to modify the judgment. None of these cases interpret Rule 5 or 59 of the Rules of Civil Procedure. They are not precedents for this case. The defendant’s last assignment of error pertains to the charge. The court recapitulated the plaintiff’s evidence as to the damage she had suffered. He then charged in part as follows: “In considering the amount of damages, if any, you may consider resulting loss of business or job, injury to reputation and mental suffering.As I say, the plaintiff says she has been substantially damaged, and you can answer that issue in any sum from $1.00 to $20,000.00.” The defendant contends that by telling the jury it could answer the issue “in any sum from $1.00 to $20,000.00” the court placed the award in the unbridled discretion of the jury. When considered in conjunction with the court’s earlier instruction as to what the jury could consider in awarding compensatory damages, we hold the court did not leave the damages in the unbridled discretion of the jury, but properly charged the jury what it could consider in awarding damages. See Carter v. Lykes, 262 N.C. 345, 137 S.E. 2d 139 (1964). It appears the jury may have awarded a substantial verdict for the damages proved. The trial judge did not disturb the verdict and we cannot interfere with his discretion. No error. Judges Hedrick and Arnold concur.