Discretion of Judge — New Trial.
1. The exercise of the discretion conferred upon the judge who presided at the trial to grant or refuse a new trial for newly discovered evidence is not the subject of review on appeal.
2. The Supreme Court will not entertain a motion for new trial for newly discovered evidence which is merely cumulative and obtained since the appeal.
( Carson v. Dellinger, 90 N.C. 226; Sanderson v. Daily, 83 N.C. 68; and Mabry v. Henry, ibid., 298, cited and approved.
SMITH, C. J., after stating the case as above:
It is settled by the ruling in Carson v. Dellinger, 90 N.C. 226, in which case the subject underwent a careful and full consideration, that the refusal to grant a new trial upon the ground of evidence since discovered and made known, or the granting of it by the judge, rested in his sound discretion and was not subject to review.
The authorities are therein discussed and the principles deduced, from which we have no disposition to depart, are decisive of the present appeal.
(99) Nor can we entertain the same motion, made originally in this Court, because additional evidence, merely cumulative, has been obtained since the appeal. This might lead to the anomalous result of a judgment here in direct conflict with an unreversed judgment in the Superior Court.
The defendant should have produced his evidence upon his motion in that court, and must abide the result of his application there.
The matter is res adjudicata, and cannot be reopened here. Sanderson v. Daily, 83 N.C. 68; Mabry v. Henry, ibid., 298.
We do not comment on the singular fact that the client's mental unsoundness was not detected in his communications with counsel, nor in his giving his testimony on the trial, since this was for the consideration of the trying judge, whose conclusions are final.
There is no error, and this will be certified to the court below.
No Error. Affirmed.
Cited: Redmond v. Stepp, 100 N.C. 220; Estes v. Jackson, 111 N.C. 150; Flowers v. Alford, ibid., 250; Black v. Black, ibid., 303; Fleming v. R. R., 168 N.C. 250; Sanford v. Junior Order, 176 N.C. 446; S. v. Casey, 201 N.C. 623.