#### ISAAC H. BAILEY and Wife v. THE DIBBRELL MINERAL COMPANY et al.

(Filed 17 May, 1922.)

1. New Trials — Verdict Set Aside — Courts — Discretion — Appeal and Error.

The discretion given by C. S., 591, to the trial judge to set aside a verdict, is not an arbitrary one to he capriciously exercised, but reasonably with the view to an equitable result in the correct administration of justice, and will not be reviewed on appeal except in cases of abuse thereof.

a. Same.

Where the judge orders a verdict set aside, deeming it to be in the cause of justice, and as contrary to the weight of the evidence and in disregard of his instructions of the law thereon, he is acting within the discretion given him by C. S., 591.

3. Same — Agreement of Parties — Compromise.

Where the losing party moves to set aside a verdict after the trial, as within the statutory discretion of the trial judge, and the judge intimates he will grant the motion, but the parties agree that he may determine the *526matter out of tlie term, in view of attempting to compromise the disputed matter; and not hearing from the parties the judge renews' Ms previous intimation, and sets a time and place for hearing, at which one of the parties appears and refuses the suggestion of the judge as a basis of a just settlement, his then setting the verdict aside within his reasonable discretion deals with the record as it originally stood, and is not an abuse of the discretion given him by the statute, O. S., 591.

Appeal by plaintiffs from Finley, J., at November Term, 1921, of Mitchell.

Civil action, under C. S., 1743, to quiet title, or to remove a cloud therefrom, and also to recover damages for an alleged wrongful trespass.

There was a verdict in favor of the plaintiffs, which his Honor set aside and ordered a new trial of the cause. -

From this ruling the plaintiffs appealed.

Council & Yount, Charles E. Green, and, Berry & McBee for plaintiffs.

M. L. Wilson, S. J. Ervin, and 8. J. Ervin, Jr., for defendants.

Stacy, J.

This is an appeal by the plaintiffs from the discretionary ruling of his Honor in setting aside the verdict, as rendered by the jury, and ordering a new trial of the cause. The case was tried at the November Term, 1921, of the Superior Court for Mitchell County. The jury returned a verdict in favor of the plaintiffs, and the defendants at the same term duly entered a motion to have the same vacated and set aside. This motion, by consent, was continued to be heard in vacation at some time and place convenient to the parties and to the court. On 6 January, 1922, the judge wrote counsel for the plaintiffs the following letter:

“I am writing to know if any adjustment has been made in the Bailey case from Mitchell County. If there has been no settlement of this matter, and if your clients have not offered a reasonable settlement, I feel it my duty to set aside the judgment, as it was clearly against the weight of the testimony. However, I hope the matter has been arranged, but I have heard nothing from either side for some time. It will not be necessary to appear and argue the matter before me on the day fixed. I am sending copy of this letter to Messrs. Ervin and Ervin, and after getting replies from both of you, I will announce my decision at once.”

Upon receipt of this letter, counsel for plaintiffs appeared before his Honor in Charlotte, N. 0., and stated that plaintiffs would agree to lease the property to the mineral company for twenty years at an annual rental price of $250. This his Honor thought was too much, but stated that “if the plaintiffs would agree to execute a lease to the mineral company, or defendants, for 20 years, at the rate of $100 a year, he would sign a judgment according to the answers to the issues as found by *527tbe jury.” Plaintiffs, tbrougb tbeir counsel, declined to agree to tbis suggestion, whereupon bis Honor stated that unless some sucb agreement were made and carried out be would set tbe verdict aside, wbicb be did. Tbe order, as signed by tbe judge, contains tbe following recital: “And it appearing to tbe court tbat tbe jury, in reaching said verdict, disregarded tbe instructions of tbe court, and tbat tbe said verdict, finding tbat tbe plaintiffs were tbe owners of tbe land in controversy, is contrary to tbe weight of tbe evidence, and tbe court, in tbe exercise of its discretion, deeming a new trial of said cause necessary in tbe interest of justice: It is considered, ordered, and adjudged tbat tbe said verdict of tbe jury, rendered in said cause at November Term, 1921, of Mitchell Superior Court, be and tbe same is hereby set aside and a new trial granted.”

Tbe right of tbe trial judge to set aside a verdict in bis discretion, as authorized by O. S., 591, is not questioned by tbis appeal; but plaintiffs contend tbat tbe action of bis Honor in tbe instant case was not a sound and wholesome exercise of tbe discretion wbicb tbe law reposes in him. In Settee v. Electric Ry., 170 N. C., 365, it was said: “Tbe discretion of tbe judge to set aside a verdict is not an arbitrary one, to be exercised capriciously or according to bis absolute will, but reasonably and with tbe object solely of presenting what may seem to him an equitable result.” And again, in Cates v. Tel. Co., 151 N. C., 506: “It rests in bis sound discretion, wbicb should be exercised always, not arbitrarily, but with a view to a correct administration of justice according to law.”

Hpon tbe foregoing expressions, plaintiffs predicate tbeir appeal, but we do not think tbe record discloses any abuse of discretion, or arbitrary or capricious exercise of power on tbe part of bis Honor below. Tbe court bad stated tbat be thought tbe verdict was clearly against tbe weight of tbe evidence, and tbat be considered it bis duty to set it aside. Tbe offer to lease tbe property for twenty years, at tbe rental price of $250 a year, then came from counsel for tbe plaintiffs, wbicb bis Honor thought was too much. He suggested, however, tbat if plaintiffs would agree to execute a lease at a lower rate, be would be disposed to let tbe verdict stand. Tbis suggestion was in accordance with what bis Honor conceived to be a fair and equitable adjustment of tbe matter; but, as tbe plaintiffs thought otherwise, tbe court was left to deal with tbe record as it stood, without regard to tbe suggested settlement.

Tbe other exceptions, appearing on tbe record and relating to thb trial of tbe cause, are not before us for consideration.

Tbe order of tbe judge setting aside tbe verdict and granting a new trial, entered as it was in tbe exercise of bis discretion, must be upheld.

Affirmed.