{ "id": 8560167, "name": "RAYFORD R. SELPH v. ANNA S. SELPH", "name_abbreviation": "Selph v. Selph", "decision_date": "1966-06-16", "docket_number": "", "first_page": "635", "last_page": "639", "citations": [ { "type": "official", "cite": "267 N.C. 635" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "187 S.E. 769", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1964, "opinion_index": 0 }, { "cite": "210 N.C. 559", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627653 ], "year": 1964, "opinion_index": 0, "case_paths": [ "/nc/210/0559-01" ] }, { "cite": "120 S.E. 2d 72", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1964, "opinion_index": 0 }, { "cite": "254 N.C. 697", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627880 ], "year": 1964, "opinion_index": 0, "case_paths": [ "/nc/254/0697-01" ] }, { "cite": "42 S.E. 936", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1964, "opinion_index": 0 }, { "cite": "131 N.C. 488", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8661532 ], "year": 1964, "pin_cites": [ { "page": "489-90" } ], "opinion_index": 0, "case_paths": [ "/nc/131/0488-01" ] }, { "cite": "8 N.C. 344", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11276260 ], "opinion_index": 0, "case_paths": [ "/nc/8/0344-01" ] }, { "cite": "160 S.E. 833", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "201 N.C. 568", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626858 ], "opinion_index": 0, "case_paths": [ "/nc/201/0568-01" ] }, { "cite": "18 S.E. 2d 119", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "220 N.C. 711", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11308698 ], "opinion_index": 0, "case_paths": [ "/nc/220/0711-01" ] }, { "cite": "90 S.E. 2d 396", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "243 N.C. 285", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624340 ], "opinion_index": 0, "case_paths": [ "/nc/243/0285-01" ] }, { "cite": "197 S.E. 597", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 2, "pin_cites": [ { "page": "598-99" } ], "opinion_index": 0 }, { "cite": "213 N.C. 797", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8630753 ], "opinion_index": 0, "case_paths": [ "/nc/213/0797-01" ] }, { "cite": "113 S.E. 2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "pin_cites": [ { "page": "13" } ], "opinion_index": 0 }, { "cite": "252 N.C. 70", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8618540 ], "opinion_index": 0, "case_paths": [ "/nc/252/0070-01" ] }, { "cite": "139 S.E. 2d 235", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "263 N.C. 158", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568347 ], "opinion_index": 0, "case_paths": [ "/nc/263/0158-01" ] }, { "cite": "52 S.E. 2d 876", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1961, "opinion_index": 0 }, { "cite": "230 N.C. 322", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629796 ], "year": 1961, "opinion_index": 0, "case_paths": [ "/nc/230/0322-01" ] }, { "cite": "82 S.E. 2d 373", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1961, "opinion_index": 0 }, { "cite": "240 N.C. 373", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8600446 ], "year": 1961, "opinion_index": 0, "case_paths": [ "/nc/240/0373-01" ] }, { "cite": "99 S.E. 2d 805", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1961, "opinion_index": 0 }, { "cite": "246 N.C. 617", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627734 ], "year": 1961, "opinion_index": 0, "case_paths": [ "/nc/246/0617-01" ] }, { "cite": "125 S.E. 2d 462", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1961, "opinion_index": 0 }, { "cite": "257 N.C. 279", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567384 ], "year": 1961, "opinion_index": 0, "case_paths": [ "/nc/257/0279-01" ] } ], "analysis": { "cardinality": 532, "char_count": 10293, "ocr_confidence": 0.557, "pagerank": { "raw": 3.031187619078092e-07, "percentile": 0.8546253082708684 }, "sha256": "285abd053a995abd0f91771745be04c68f9da3e4452e93622eac9478f658e3ab", "simhash": "1:e249947138ab4698", "word_count": 1828 }, "last_updated": "2023-07-14T22:57:43.953535+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Moore, J., not sitting." ], "parties": [ "RAYFORD R. SELPH v. ANNA S. SELPH." ], "opinions": [ { "text": "Sharp, J.\nNo two rules are better settled in North Carolina than these:\n(1) The trial judge has the discretionary power to set aside a verdict when, in his opinion, it would work injustice to let it stand; and, if.no question of law or legal inference is involved in the motion, his action in so doing is not subject to review .on appeal in the absence of a clear abuse of discretion. Goldston v. Wright, 257 N.C. 279, 125 S.E. 2d 462; Walston v. Greene, 246 N.C. 617, 99 S.E. 2d 805; Roberts v. Hill, 240 N.C. 373, 82 S.E. 2d 373; Pruitt v. Ray, 230 N.C. 322, 52 S.E. 2d 876; 4 Strong, N. C. Index, Trial \u00a7 48 (1961). (2) After their verdict has been rendered and received by the court, and they have been discharged, jurors will not be allowed to attack or overthrow it, nor will evidence from them be received for such purpose. State v. Hollingsworth, 263 N.C. 158, 139 S.E. 2d 235; In re Will of Hall, 252 N.C. 70, 113 S.E. 2d 1.\nIn this case, the judge did not purport to set aside the verdict because he considered it against the weight of the evidence or a miscarriage of justice. No motion was made upon those grounds; and apparently no motion to set aside the verdict was contemplated upon any. ground until the juror informed counsel for plaintiff that he and two others \u201cwere under the impression that the plaintiff would not be required to support the defendant.\u201d The basis of the motion to set aside the verdict was evidence furnished by a juror which tended to impeach his verdict, and the judge- \u2014 -specifically designating the reasons for his action \u2014 allowed the motion upon this evidence. The law says, however, that such testimony will not be received. If admitted at all, evidence for that purpose \u201cmust come from some other source\u201d than the jurors themselves. State v. Hollingsworth, supra. Obviously, evidence such as that given by the juror in this case could come only from a member of the jury.\nIt is interesting to note that this juror did not suggest any clerical error in the written verdict which he and the other eleven had returned, and which they had all affirmed upon the poll, a short time before. \u201cYes\u201d and \u201cNo\u201d had been correctly recorded. Furthermore, the juror did not intimate that either he or the other two whom he represented as having been confused as to the law had been confused about the facts. Obviously, they had simply been mistaken as to the legal effect of their findings of fact. A similar situation occurred in Livingston v. Livingston, 213 N.C. 797, 197 S.E. 597. In that case, fifteen minutes after the judge had received the verdict, ordered it recorded, and dismissed the jury, a juror informed him that the jury had agreed to decide the case for Mrs. Livingston, and had thought that the answer \u201cYes\u201d constituted a decision in her favor. Upon receiving this information, the judge reassembled the jury in the box and permitted them to change the word \u201cYes\u201d to \u201cNo.\u201d In declaring the second verdict to be \u201cwithout legal sanction,\u201d Stacy, C.J., speaking for the Court, said:\n\u201cBut whether the case should ultimately be decided in favor of the plaintiff or Mrs. Livingston was not for them (the jurors) to determine. . . . The error, if any they made, was an error of law and not one of fact. . . . They did what they intended to do but misconceived the legal effect of their action. They were not aware of any mistake or error on their part even after the matter had been called to their attention, and not until the legal effect of the verdict was explained to them did they express any desire to change it.\u201d Id. at 799, 197 S.E. at 598-99.\nThe court treated the first verdict as having been set aside in the judge\u2019s nonreviewable discretion and ordered a new trial.\nJurors likewise make an error of law, but not of fact, when \u2014 in a negligence action \u2014 they answer the issues of negligence and contributory negligence \u201cYes,\u201d and then award the plaintiff damages on the third issue. In such cases it is held that the court should accept the verdict and render judgment thereon for defendant. Swann v. Bigelow, 243 N.C. 285, 90 S.E. 2d 396; Butler v. Gantt, 220 N.C. 711, 18 S.E. 2d 119; Allen v. Yarborough, 201 N.C. 568, 160 S.E. 833.\nIn this case no abuse of discretion appears, nor is any abuse suggested. However, error in law does appear, for the motion upon which Judge Carr acted was based on grounds which the law does not recognize or sanction. To permit his order to stand would permit a juror to impeach the verdict and thus violate a public policy which had \u201cbeen long settled\u201d when the case of State v. M\u2019Leod, 8 N.C. 344, was reported in 1821. If Judge Carr, without finding any facts except that the ends of justice required the action, had set aside the verdict in the exercise of his discretion, his order would have been unassailable on appeal.\n\"The power of the court to set aside the verdict as a matter of discretion has always been inherent, and is necessary to the proper administration of justice. . . . When the verdict is set aside as a matter of discretion it is not necessary to find the facts . . . and if no reason is given it is presumed that the new trial was granted as a matter of discretion, and the appeal will be dismissed.\u201d Bird v. Bradburn, 131 N.C. 488, 489-90, 42 S.E. 936-37. Accord, Brittain v. Aviation, Inc., 254 N.C. 697, 120 S.E. 2d 72; Jones v. Insurance Co., 210 N.C. 559, 187 S.E. 769; 2 McIntosh, N. C. Practice & Procedure \u00a7 1594 (2d Ed. 1956 and Supp. 1964).\nHad Judge Carr felt that the verdict in this case was against the weight of the evidence, that it was affected by prejudice, or that any circumstances not furnishing a legal ground for setting aside the verdict had weighed too heavily against the plaintiff, and had resulted in inequity, he could have adopted the method approved in Bird v. Bradburn, supra, to set it aside. See In re Will of Hall, supra at 88, 113 S.E. 2d at 13. It is significant that he did not do so. Instead, in an order which fails to suggest that the verdict represented a miscarriage of justice, he \u201cspelled out\u201d the grounds upon which he set it aside. These grounds, as a matter of law, require that his order be vacated and the case remanded for judgment on the verdict which the court had accepted.\nReversed.\nMoore, J., not sitting.", "type": "majority", "author": "Sharp, J." } ], "attorneys": [ "Elizabeth C. Fox for plaintiff appellee.", "Smith, Herring & Swaringen by W. Ritchie Smith, Jr., for defendant appellant." ], "corrections": "", "head_matter": "RAYFORD R. SELPH v. ANNA S. SELPH.\n(Filed 16 June, 1966.)\n1. Trial \u00a7 48\u2014\nThe trial judge has the discretionary power to set aside a verdict when, in his opinion, it would work injustice to let it stand; and,- if no question of law or legal inference is involved in the motion, his action in so doing is not subject to review on appeal in the absence of a clear abuse of discretion.\nS. Trial \u00a7 46\u2014\nAfter the verdict has been rendered and received by the court, and the jury has been discharged, jurors will not be allowed to attack or overthrow it, nor will evidence from them be received for such purpose.\nS. Trial \u00a7 48\u2014\nWhere the trial court finds from his examination of one of the jurors that at least three jurors were confused as to the legal effect of their verdict, and thereupon orders that the verdict be set aside in the discretion of the court, there being no suggestion by the juror of any clerical error in the written verdict or that the jurors had been confused about the facts, held, it appearing from the court\u2019s order that it was based upon grounds which the law does not recognize nor sanction, the order must be vacated for error of law and the cause remanded for judgment on the verdict which the court had accepted.\nMooee, J., not sitting.\nAppeal by defendant from Carr, J., January 17, 1966 Civil Session of CUMBERLAND.\nPlaintiff brought this action for an absolute divorce from defendant upon the grounds of one year\u2019s separation. Defendant, alleging that plaintiff had abandoned her without just cause or excuse, counterclaimed for alimony without divorce. Upon the trial, issues were submitted to the jury and answered as follows:\n\u201c1. Has the plaintiff been a resident of the State of North Carolina for at least six months next preceding the institution of this action?\nAnswer: Yes.\n\u201c2. Were the plaintiff and defendant lawfully married to each other as alleged in the Complaint?\nAnswer: Yes.\n\u201c3. Have the plaintiff and defendant lived continuously separate and apart from each other for at least one year next preceding the institution of this action?\nAnswer: No.\n\u201c4. Did the plaintiff wrongfully abandon the defendant without adequate provocation, as alleged?\nAnswer: Yes.\u201d\nUpon the coming in of the verdict, at the request of plaintiff\u2019s counsel, the jury was polled, and each juror stated that he had answered the issues in accordance with the written verdict returned. The verdict was recorded, and the court dismissed the jury. With counsel\u2019s consent, he continued until the following week the hearing to determine the amount of alimony which plaintiff should pay defendant. Thereafter, one of the jurors who had not left the courtroom informed plaintiff\u2019s attorney \u201cthat there was some question in his mind as to the legal effect of his answer to the fourth issue.\u201d Counsel immediately took the juror to Judge Carr, who examined him in Chambers.. The juror stated to the judge \u201cthat he and two other jurors were mistaken as to how and on what basis of law the charge in the third and fourth issues were to be answered, that they were confused, mistaken, and misunderstood how some of the issues were to be answered and were under the impression that the plaintiff would not be required to support the defendant.\u201d\nBased upon the foregoing statement of the juror, plaintiff filed a written motion on January 24, 1966, that the verdict be set aside and a new trial granted. Judge Carr heard the motion and, on January 28, 1966, entered an order in which he found as a fact that the juror, whom he had examined \u201cin chambers before he left the courtroom, . . . and at least two others, were mistaken as to the legal effect of their answer to the fourth issue.\u201d He thereupon ordered \u201cthat the verdict rendered by the jury be, and the same is hereby set aside in the discretion of the court, and a new trial is ordered.\u201d\nDefendant excepted to this order and appealed.\nElizabeth C. Fox for plaintiff appellee.\nSmith, Herring & Swaringen by W. Ritchie Smith, Jr., for defendant appellant." }, "file_name": "0635-01", "first_page_order": 671, "last_page_order": 675 }