#### O. HENRY MOORE v. G. L. TIDWELL et al.

(Filed 10 June, 1927.)

Evidence — New Trials — Newly Discovered Evidence — Appeal and Error.

Under the facts of this case, a motion for a new trial for newly discovered evidence made in tlie Supreme Court is allowed, the refusal of the motion by the trial judge not being reviewable.

Appeal by defendants from Schenclc, J., at December Term, 1926, of Mecklenburg.

Civil action in tort to recover damages for an alleged personal injury, tried upon issues of negligence, liability and damages, resulting in a verdict and judgment for the plaintiff, from which the defendants L. B. Cress and J. E. Lowder appeal, assigning errors.

Carswell & Ervin'and John M. Robinson for plaintiff.

Hartsell & Hartsell and Preston & Ross for appealing defendants.

*856Per Curiam.

The defendants in limine renew their motion, originally made in the Superior Court, for- a new trial on the ground of newly discovered evidence. It is alleged that additional information, which defendants consider vital and important to their cause, has come to their attention since the adjournment of the term of court at which the case was tried, and after the appeal was docketed here. Allen v. Gooding, 174 N. C., 271. The showing made by defendants in this respect seems to meet the requirements laid down in Johnson v. R. R., 163 N. C., p. 453, for the granting of new trials on the ground of newly discovered evidence. Hence, for this reason, the cause will be remanded for another hearing.

Our ruling, it will be observed, is bottomed upon the motion and showing made here, and not upon the refusal of the trial court to grant the motion on the evidence offered before him, for no appeal lies from such refusal, unless based upon a mistaken view of the law. Flowers v. Alford, 111 N. C., 248; Carson v. Dellinger, 90 N. C., 226.

New trial.