Opinion
(Filed 23 March, 1938.)
1. Trial § 47 —
Affidavits supporting a motion for a new trial for newly discovered evidence are insufficient to invoke the discretionary power of the court to hear the motion when they disclose that the evidence relied upon is merely cumulative and contradictory.
2. Appeal and Error § 37b —
While a motion for a new trial for newly discovered evidence is addressed to the discretion of the trial court, when the affidavits supporting the motion are insufficient to invoke the discretionary power of the court, its ruling thereon is reviewable, and the granting of the motion will be held for error.
APPEAL by plaintiff from Grady, J., at November Term, 1937, of HARNETT.
Neill McK. Salmon for plaintiff, appellant.
J. R. Young and J. A. Jones for defendant, appellee.
Motion for new trial for newly discovered evidence.
The action for recovery of damages for personal injury resulting allegedly from actionable negligence was tried at the February Term, 1937, of the Superior Court of Harnett County. From judgment on the verdict in favor of the plaintiff, defendant appealed to Supreme Court. Judgment was affirmed at the Fall Term, 1937. 212 N.C. 113, 193 S.E. 170. Opinion was duly certified to the clerk of the Superior Court of Harnett County. At the next succeeding term of said Superior Court, the November Term, 1937, defendant filed motion for new trial upon ground of newly discovered evidence.
The judge below in his discretion allowed the motion, and in accordance therewith rendered judgment granting new trial, from which plaintiff appealed to Supreme Court, and assigned error.
The prerequisites to the granting of motion for new trial for newly discovered evidence are fully set forth in Johnson v. R. R., 163 N.C. 431, 79 S.E. 690; also in Brown v. Hillsboro, 185 N.C. 368, 117 S.E. 41; Brown v. Sheets, 197 N.C. 268, 148 S.E. 233; S. v. Casey, 201 N.C. 620, 161 S.E. 81; Love v. Queen City Lines, 206 N.C. 575, 174 S.E. 514; Furniture Co. v. Cole, 207 N.C. 847, 178 S.E. 579.
An examination of the affidavits offered by defendant in support of the motion fails to show compliance with the tests required. When compared with the evidence introduced at the trial of the case in Superior Court, it is observed that the so-called newly discovered evidence is merely cumulative and tends only to contradict former witnesses.
"Although the discretionary ruling of the trial judge upon an application for new trial for newly discovered evidence is not reviewable on appeal, where the applicant fails to make out a showing of newly discovered evidence sufficient in law to invoke the discretionary ruling the granting of the application will be held for error," headnote in Crane v. Carswell, 204 N.C. 571, 169 S.E. 160, which is applicable here.
The granting of a new trial below is
Error.