Abernethy v. Yount.
Supreme Court of North Carolina
ActioN by A. S. Abernethy against D. E. Yount, beard by Judge T. A. McNeill and a jury, at tbe July Term, 1904, of tbe Superior Court of Catawba County.
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ActioN by A. S. Abernethy against D. E. Yount, beard by Judge T. A. McNeill and a jury, at tbe July Term, 1904, of tbe Superior Court of Catawba County. Tbe plaintiff brought suit in a justice’s court against tbe defendant for tbe recovery of a note for $53.20. Upon appeal tbe cause was tried in tbe Superior Court upon tbe following issue: “Did tbe defendant execute and deliver tbe alleged note set out by tbe plaintiff as tbe cause of action?” Tbe plaintiff testified that be bought tbe note from one A. S. Sattertbwaite, and before it fell due paid full value for it; that no payment bad been…
1DissentClark, C. J.
The judge below granted a new trial without saying whether he did so as a matter of discretion, or because he found he had committed an error of law in the trial, and he was not asked to state upon what ground he granted a new trial.
The presumption always is in favor of the correctness of the trial below and he who alleges error must assign and show error. This is elementary. If this new trial was granted as a matter of discretion, there could be no error. If it was granted for error 'in law which the judge thought he had committed, it would be a reviewable question to decide whether or not…
2Cases cited8 opinions
- Bird v. Bradburn.Supreme Court of North Carolina · 1902
- State v. . BraddySupreme Court of North Carolina · 1889
- Thomas v. . MyersSupreme Court of North Carolina · 1882
- Wood v. Atlantic & North Carolina RailroadSupreme Court of North Carolina · 1902
- Braid v. . LukinsSupreme Court of North Carolina · 1886
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