Bethea v. Town of Kenly

136 S.E.2d 38 (1964)

261 N.C. 730

David BETHEA v. TOWN OF KENLY, Carl Durham, Ralph Davis, and Eula Mae Stancil and Kenneth H. Stancil.

No. 524.

Supreme Court of North Carolina.

April 29, 1964.

Shepard, Spence & Mast, Smithfield, for plaintiff.

Smith, Leach, Anderson & Dorsett, Raleigh, and William R. Britt, Smithfield, for defendants Town of Kenly and Carl Durham.

PER CURIAM.

Plaintiff's appeal. "It is a cardinal rule that the judgment must follow the verdict, and if the jury have given a specified sum as damages, the court cannot increase or diminish the amount, except to add interest, where it is allowed by law and has not been included in the findings of the jury." 2 McIntosh, North Carolina Practice and Procedure § 1691 (2d ed. 1956); Durham v. Davis, 171 N.C. 305, 88 S.E. 433. In this case, the judge should have set aside the verdict in his discretion if he deemed it against the weight of the evidence or considered the damages excessive. Instead of doing so, he attempted to change the verdict as to the defendants Stancil, and this he could not do. Winn v. C. W. Finch & Son, 171 N.C. 272, 88 S.E. 332. As to the defendants Town of Kenly and Carl Durham, the judge dismissed the action after verdict by a judgment as of nonsuit for insufficiency of the evidence. This also he had no authority to do. Temple v. Temple, 246 N.C. 334, 98 S.E.2d 314; Ward v. Cruse, 234 N.C 388, 67 S.E.2d 257.

Defendants' appeal. No judgment has yet been entered against the defendants Town of Kenly and Carl Durham. The judgment from which these defendants appealed is that the plaintiff recover nothing of them. Until a judgment is entered against them they are not parties aggrieved and may not appeal. G.S. § 1-271; State ex rel. Gold v. Equity General Insurance Co., 255 N.C. 145, 120 S.E.2d 452; Starnes v. Tyson, 226 N.C. 395, 38 S.E.2d 211. Error having been made to appear on plaintiff's appeal, when the Superior Court enters a judgment on the verdict against defendants as directed by this opinion they may then appeal and assign the errors of which they now complain. Williams v. Safe Bus, Inc., 210 N.C. 400, 186 S.E. 482; Wachovia Bank & Trust Co. v. Atlantic Greyhound Lines, 210 N.C. 293, 186 S.E. 320; Anderson v. Morris, 203 N.C. 577, 166 S.E. 527. To hold otherwise would be to disregard a long-established rule of procedure. "An important part of every code of laws is that settling and defining the methods of legal procedure. In this rest the life, vigor and efficiency of the law. It is, therefore, unwise to underrate its importance." McLaurin v. Cronly, 90 N.C. 50.

Defendants' appeal dismissed.

Plaintiff's appeal error and remanded.

MOORE, J., took no part in the consideration or decision of this case.