#### WILLIAM A. QUINCEY v. W. L. M. PERKINS.

*Practice — New Trial — Absence of Witness.*

"IThe terms of § 236, C. C. P. do not include all the grounds upon which a Court may grant a new trial, but are additional to the grounds mentioned in § 133, C. C. P. Therefore, when the Court below refused to continue an action on account of the absence of a material witness for the defendant and after judgment in favor of the plaintiff granted the ■defendant a new trial on account of the absence of such witness ; *Held,*not to be error.

Civil Actioh, tried at August Special Term, 1876, of '«G-RANVILle Superior Court, before Seymour, *J.*

On the trial in the Court below the plaintiff read his complaint and the defendant his answer and each rested his «■case.

Under instructions of the Court the jury found a special yerdict in favor of plaintiff for $562.16 subject to the opinion ■of His Honor.

The counsel for defendant then made a motion for a new trial upon the ground previously taken by him for a con■tinuance, to-wit; the absence of a material witness. His Honor being of opinion that substantial justice could only be obtained by a new trial set aside the verdict and ordered the case to be continued. Plaintiff excepted and moved for judgment on complaint and answer which was refused. Plaintiff appealed.

*Messrs. L. G. JEdioards*and *J. B.*Batchelor, for plaintiff.

*Messrs.*Merrimon, *Fuller Ashe, T. L. Hargrove*and *T. B.*Venable, for defendant.

RodmaN, d.

The defendant moved for a'continuance on ■the ground of the absence of his material witness. This *296motion was refused by the Judge. The defendant was thus-compelled to go to trial, and inasmuch as by his answer he had admitted the execution of the note sued on and that a part of it remained unpaid and as he could not give any evidence of his defence in avoidance, the jury of course found for the plaintiff. The defendant moved for a new trial on the same ground on which he had moved for a continuance,, and the Judge set aside the verdict and granted a new triaL It was argued by Mr. Batchelor for the plaintiff that the Judge could grant a new trial only in the cases mentioned in sub-section 4 of § 236 of C. C. P., and that none of the reasons there mentioned existed in the case. If § 236 is-read in connection with § 133 it will be seen that §- 236 was not intended as a statement of all the cases in which the-Judge might grant a new trial, but as an addition to the cases or grounds mentioned in § 133, and also to prescribe that in the cases there mentioned the motion must be heard at the term at which the trial is had.

By § 133 the Judge in his discretion may relieve a party from a judgment, order or other proceeding taken against him through his surprise, &e., at any time within one year, &c. Of course therefore he may do it at the term at which, a verdict (for this is included in the term “ other proceeding”) is taken. In the present case the Judge evidently thought that the defendant had been surprised by the absence of his witness and wished to review his refusal of the motion to continue, which he could only do by granting anew trial.

We cannot say that the discretion of the Judge was improperly exercised.

There is no error.

Per. Curiam. Judgment affirmed.