Crow v. McCullen

Sohenck, J.

We are constrained to bold tbat tbe judge erred in entering tbe judgment setting aside for newly discovered evidence tbe judgment theretofore entered by him in favor of tbe plaintiff.

Tbe judgment signed 11 February, 1941, and docketed 14 February, 1941, was signed out of term and out of tbe county by consent of tbe parties, but when docketed it became a judgment as of tbe January Term, 1941. Tbe January Term, 1941, expired 20 January, 1941. In tbe absence of any preservation by agreement of tbe right to move to set aside tbe judgment at a subsequent term, tbe judge was without authority to vacate tbe judgment after tbe term at wbicb it bad been rendered bad expired.

Bisanar v. Suttlemyre, 193 N. C., 711 , 138 S. E., 1 ;

Acceptance Corp. v. Jones, 203 N. C., 523 , 166 S. E., 504 ;

Hinnant v. Ins. Co., 204 N. C., 307 , 168 S. E., 199 .

“It is well settled under our practice tbat a motion to set aside a verdict and grant a new trial upon tbe ground of newly discovered evidence must be made and determined at tbe same term at wbicb tbe trial is bad. . . . Tbe reasons why verdicts should not be set aside at subsequent terms, whether because against tbe weight of tbe evidence or for newly discovered testimony, is because bearing and determining such motions involve recollection by tbe trial judge of tbe testimony, tbe demeanor of tbe witnesses, and other incidents of tbe trial, wbicb are not so strongly impressed upon tbe memory of a judge tbat be may safely *308 act upon them after adjournment.

Knowles v. Savage, 140 N. C., 374 .”

Stilley v. Planing Mills, 161 N. C., 517 , 77 S. E., 760 .

Tbe judgment of tbe Superior Court setting aside for newly discovered evidence tbe judgment theretofore entered is Reversed.