When a verdict upon issues sent for trial from this court to a Superior Court, is, in the opinion of the Judge who presided, contrary to the weight of the evidence; or in case of any other miscarriage by the court, or the jury, such Judge has full power to grant a new trial.
Cases in equity pending at the adoption of the present constitution, cannot now be
transferred for trial to this court; they must be heard below, and can only be constituted here
by appeal.
The issues had been sent for trial from this court.
No statement of the facts is necessary.
PEARSON, C. J.
His Honor was of opinion, that the verdict was against the weight of the evidence; but he doubted his power to set aside the verdict and order a new trial, and on that ground refused the motion.
On the argument before us, it was properly conceded that his Honor had the power, and the only question was upon the construction of the words used by him in sending up the issues.
We are satisfied that he would have ordered a new trial, but for his doubt in regard to the power to do so on the "trial of issues" sent from this court.
Upon the trial of issues of fact sent down by this court, the Judge in the court below has full power to correct any miscarriage of the jury or any error that may have been committed by himself, in respect to the admission or rejection of evidence, or in his charge, by granting a new trial. In these respects his power is the same as on the trial of actions: Peebles v. Peebles, 63 N.C. 656. The English precedents in regard to issues sent by a Court of Equity, are not applicable. Ours is a new system which rests on the provision of the constitution, "No issue of fact shall be tried before the Supreme Court." Art. 4, sec. 10.
We take occasion to say that the statute allowing cases in equity to be transferred to the Supreme Court for trial, is repealed, by the effect of the constitution creating this court as a "Court of Appeal."
Equity cases pending before the adoption of the constitution, must be heard and disposed of below, and can only be constituted in this court by appeal. (280)
The verdict must be set aside, and a new trial of the issues ordered.
Per curiam.
Ordered accordingly.
Cited: Ferrall v. Broadway, 95 N.C. 556.