Opinion · Nclaw North Carolina
WILLIAMS v. WILLIAMS, 70 N.C. 664 (1874)
C. H. WILLIAMS & OTHERS v. ALEXANDER & GREEN WILLIAMS,ADM'RS., c., 70 N.C. 664 (N.C. 1874)
- Type
- Opinion
- Court
- Nclaw North Carolina
- Jurisdiction
- Nclaw
- Date
- 1874-01-01
- Topic
- general
WILLIAMS v. WILLIAMS, 70 N.C. 664 (1874) C. H. WILLIAMS AND OTHERS v. ALEXANDER AND GREEN WILLIAMS,ADM'RS., c.Supreme Court of North Carolina (January Term, 1874.) A re-hearing is not a matter of right, but rests in the sound discretion of the Court, where the parties to a final judgment fail to appeal by their own default.
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WILLIAMSv. WILLIAMS,70 N.C. 664(1874)
C. H. WILLIAMS AND OTHERS v. ALEXANDER AND GREEN WILLIAMS,
ADM'RS., c.
Supreme Court of North Carolina
(January Term, 1874.)
In a petition to re-hear, it should appear either that there is error of law apparent on the record, or that testimony has been newly discovered which would materially vary the case. That no pleadings have been filed in a cause before the Probate Court, and that evidence of the witnesses was not taken by question and answer, and signed, are no such grounds of error of law as will entitle a party to have the cause re-heard after final judgment, especially when it appears that such party had every opportunity for a full defence, and of an appeal.
The grounds of the defendant's application to re-hear, and the facts pertinent to the point decided, are stated in the opinion of the Court.
Conceding the power of the Court of Probate to grant rehearings under C. C. P., sec. 133, for what causes will this power be exercised? A rehearing is not a matter of right, but rests in the sound discretion of the Court, when the parties to a final judgment fail to appeal by their own default. Before the Court will exercise the discretion, it must appear not only that injustice has been done, but that it occurred without the laches of the petitioner. Ordinarily, there are but two grounds upon which a petition to rehear will be entertained: 1. For error of law apparent on the record. 2. For newly discovered testimony which would materially vary the case. Adams' Eq. 397, note 2;5 N.C. 11;Hart v. Smith, 3 Rich. 465; 3Story299.
Two questions of law are raised in the exceptions:
1. That no pleadings in the cause have been filed.
2. That the evidence of witnesses was not taken by question and answer, and signed by them.
As to the first point, it does appear by the record that a summons was issued and served upon the defendants and a complaint regularly filed. If the defendants failed to answer, it was their own default, for which they have no right to complain on a petition to rehear. As to the second error assigned, we know of no inexorable rule that requires the evidence in accounts taken to be reduced to writing in question and answer. The defendants do not allege any prejudice sustained thereby, and the objection certainly comes too late upon the motion (667) to rehear.
There are other exceptions, but as they are confined to the weight of the evidence and allegations of what the defendants could prove on a rehearing, matters addressed wholly to the discretion of the Court, it is unnecessary to notice them particularly.
The record shows that the account was taken with unusual skill and accuracy, and that the defendants had every opportunity to make a full defence and to appeal from the final judgment, and thus obtain a review of the facts as well as the law. No error of law appearing, we have no power to interfere with the discretion of the Court below.
PER CURIAM. Judgment affirmed and appeal dismissed.Sc71 N.C. 427;Sc74 N.C. 2;Grant v. Edwards,88 N.C. 249.Page 537