#### O. D. HINNANT v. AMERICAN FIRE AND MARINE INSURANCE COMPANY et al.

(Filed 8 March, 1933.)

New Trial C c—

The trial court is without authority to vacate a judgment of nonsuit and grant a new trial after adjournment of the term at which the case was tried except by consent. In this case such order was entered by the trial court when called upon to settle the case on appeal.

Appeal by defendant, American Fire and Marine Insurance Company, from Grady, J., at Chambers in Smithfield, 10 December, 1932. From JohNstoN.

Civil action to recover on insurance policy, tried at tbe September-October Term, 1932, Johnston Superior Court, which resulted in judgment of nonsuit, and from which plaintiff gave notice of appeal. Plaintiff’s statement of case on appeal and defendant’s counter-case were both filed in apt time, and duly sent to tbe judge for settlement. Tbe following order was entered 10 December, 1932:

“This cause coming on to be beard at Smithfield, N. 0., for tbe purpose of settling tbe case on appeal, and this court having carefully considered tbe counter-ease as made out by tbe defendants, and tbe court being of tbe opinion, upon said counter-case, and the case as made up and served by tbe plaintiff, that a new trial should be ordered, and that it is useless to put tbe parties to tbe expense of an appeal; now, upon tbe facts admitted in tbe two ‘cases’ as made up by tbe parties, and also in tbe discretion of tbe court, it is ordered that tbe verdict and judgment entered in this cause at tbe September-October Term, 1932, be and tbe same is set aside, and a new trial ordered upon tbe same or some other proper issues.

This 10 December, 1932. Heney A. Geady, Judge Presiding.”

From this order tbe defendant, American Fire and Marine Insurance Company, appeals, assigning error.

*308 A. J. Fletcher for defendant, American Fire and Marine Insurance Company.

Stacy, C. J.

Laudable as bis purpose may have been, tlie learned judge was without authority to vacate the judgment of nonsuit and grant a new trial after adjournment of the term at which the case was tried, except by consent. Acceptance Corp. v. Jones, 203 N. C., 523; Bisanar v. Suttlemyre, 193 N. C., 711, 138 S. E., 1; Dunn v. Taylor, 187 N. C., 385, 121 S. E., 659.

The order, therefore, from which the defendant appeals, will be stricken out.

Error.