Price v. Life & Casualty Insurance Co. of Tennessee, Inc.

Adams, J.

Tbe case was tried in tbe Superior Court in December, 1930. At tbe close of tbe plaintiff’s evidence tbe defendant moved for judgment of nonsuit. Tbe motion was denied; tbe defendant excepted and declined to offer evidence. Tbe jury returned a verdict in favor of tbe plaintiff for one hundred and seventy-five dollars and tbe court gave tbe plaintiff a judgment for tbis sum. On tbe next day tbe court upon motion of tbe defendant set aside tbe judgment as a matter of law and not as a matter of discretion. Tbe specific ground upon which tbe judgment was vacated is not set out in tbe order, but in its brief tbe appellant says tbat tbe instruction given tbe jury was in conflict with tbe principle stated in Gilmore v. Ins. Co., 199 N. C., 632 . Tbis objection, however, was essentially involved in tbe judge’s refusal to dismiss tbe action upon tbe plaintiff’s evidence; and having adjudged tbe legal sufficiency of tbe evidence before verdict, tbe court could not after verdict and judgment reverse tbis ruling as a matter of law. On tbis point tbe defendant’s remedy lay in its exception and appeal.

Godfrey v. Coach Co., 200 N. C., 41 ;

Lee v. Penland, ibid., 340;

Price v. Ins Co., ibid., 427.

It appears from tbe face of tbe order'that tbe court refused to vacate tbe judgment as a matter of discretion. Such exercise of discretion was final. As a rule one judge may not review tbe action of another judge of coordinate jurisdiction on tbe same state of facts. Judge Oranmer’s judgment must therefore be affirmed.

Tbe appellant says tbat if Judge Cranmer’s order is correct tbe plaintiff will recover a judgment which cannot be sustained under tbe *378 law announced in the Gilmore case;

but as pointed out by the appellee’s brief two courses were open to the appellant, and it pursued the one which led to an unexpected result.

It is not necessary to advert to the obvious distinction between the present case and Morgan v. Owen, 200 N. C., 34 . Judgment Affirmed.