#### C. O. PRICE, Administrator of HULDA COOK, v. LIFE AND CASUALTY INSURANCE COMPANY OF TENNESSEE, Incorporated.

(Filed 30 September, 1931.)

1. Appeal and Error J lb — Action of trial court in refusing to set aside verdict as matter of discretion is final.

Where in the trial of an action the court has refused the defendant’s motion as of nonsuit, and after verdict and judgment has set aside the judgment as a matter of law for insufficiency of evidence, and upon appeal therefrom the Supreme Court remands the judgment for the further Xiroceedings, and thereafter the defendant makes motion before another judge to set aside the verdict as a matter of discretion, which motion is refused, Held,: the refusal to set aside the verdict as a matter of discretion is final.

2. Judges A a — One Sui>ei*ior Court judge may not review action of another.

As a rule one judge may not review the action of another judge of coordinate jurisdiction on the same facts.

Appeal by defendant from Crarwier, J., at June Term, 1931, of Halifax.

The plaintiff brought suit before a justice of the peace to recover an amount alleged to be due on an insurance policy. On appeal to the *377Superior Court a verdict was awarded and judgment was given tbe plaintiff at tbe December Special Term for tbe sum of $175.00. On tbe day following tbe rendition of tbis judgment, tbe presiding judge, on motion of defendant ordered tbat tbe judgment be vacated as a matter of law and not as a matter of discretion. Tbe plaintiff appealed to tbe Supreme Court and tbe cause was remanded upon error for further proceedings. 200 N. 0., 427. At tbe June Term, 1931, tbe defendant made a motion before Judge Cranmer in bis discretion to set aside tbe verdict and judgment rendered by bis predecessor at tbe previous December Term. Judge Cranmer was of opinion tbat be was without discretion in tbe matter and denied tbe defendant’s motion. Tbe defendant excepted and appealed.

Allen C. ZolUcoffer and E. L. Travis for plaintiff.

Parleer & Allsbrook for defendant.

Adams, J.

Tbe case was tried in tbe Superior Court in December, 1930. At tbe close of tbe plaintiff’s evidence tbe defendant moved for judgment of nonsuit. Tbe motion was denied; tbe defendant excepted and declined to offer evidence. Tbe jury returned a verdict in favor of tbe plaintiff for one hundred and seventy-five dollars and tbe court gave tbe plaintiff a judgment for tbis sum. On tbe next day tbe court upon motion of tbe defendant set aside tbe judgment as a matter of law and not as a matter of discretion. Tbe specific ground upon which tbe judgment was vacated is not set out in tbe order, but in its brief tbe appellant says tbat tbe instruction given tbe jury was in conflict with tbe principle stated in Gilmore v. Ins. Co., 199 N. C., 632. Tbis objection, however, was essentially involved in tbe judge’s refusal to dismiss tbe action upon tbe plaintiff’s evidence; and having adjudged tbe legal sufficiency of tbe evidence before verdict, tbe court could not after verdict and judgment reverse tbis ruling as a matter of law. On tbis point tbe defendant’s remedy lay in its exception and appeal. Godfrey v. Coach Co., 200 N. C., 41; Lee v. Penland, ibid., 340; Price v. Ins Co., ibid., 427.

It appears from tbe face of tbe order'that tbe court refused to vacate tbe judgment as a matter of discretion. Such exercise of discretion was final. As a rule one judge may not review tbe action of another judge of coordinate jurisdiction on tbe same state of facts. Judge Oranmer’s judgment must therefore be affirmed.

Tbe appellant says tbat if Judge Cranmer’s order is correct tbe plaintiff will recover a judgment which cannot be sustained under tbe *378law announced in the Gilmore case; but as pointed out by the appellee’s brief two courses were open to the appellant, and it pursued the one which led to an unexpected result.

It is not necessary to advert to the obvious distinction between the present case and Morgan v. Owen, 200 N. C., 34. Judgment

Affirmed.