When the judge finally leaves the bench at any term of court, the court expires whether the week has ended or not. Detafield v. Construction Co., 115 N. C., 21, and citations thereto in Anno. Ed.
Uotion to set aside the verdict, or take other action in the case ai the next term, cannot be entertained, except by consent, because to do this would be to permit in effect an appeal from one Superior Court judge to another, and of course if this were allowable an appeal from such action could be taken to the next term of the Superior Court, and so on ad infinitum. Even if the judge before whom the motion is made at the next term of court were the same judge his memory of the evidence would be dimmed by the lapse of time.
While this is so, it has been the custom that when the judge is leaving after trying the last case at the term, an agreement of coimsel that the verdict may be taken by the clerk and that the judgment thereon may be signed at any. other time or place within the district, is not unusual. It may be said that it is a bad custom, and very frequently leads to. inconvenient results, as in this case. It ought to be discountenanced and is only tolerated as a matter of convenience to avoid going over the trial again when all other matters of the court have been disposed of and counsel do not wish to detain the judge to await the result of the deliberations of the jury.
In this case, the usual agreement was made that.the judgment should Be signed by the judge at any other time and place, and the sole question is what is the just and reasonable construction of such agreement. It is the right of every litigant that after the verdict is brought in by the jury the party against whom it is rendered can move to set aside the verdict, if against the weight of the testimony, or contrary in the opin*633ion of tbe judge to justice. It is not reasonable to suppose tbat either side to tbe agreement in tbis case intended tbat it should be deprived of tbis supervisory power which tbe law from time immemorial has yested in tbe presiding judge to review and supervise tbe action of tbe jury. Tbe jury may have misunderstood tbe evidence, or tbe charge of tbe Court, and sometimes may have been misled by tbe able arguments of counsel, or by local or personal bias. For tbis reason tbe losing party whoever be may be, has tbe right to have tbe judge supervise tbe verdict, and while be cannot reverse tbe action of tbe jury there must be tbe judgment of tbe court rendered after due deliberation upon tbe finding of tbe jury. As a great judge once said, in reviewing tbe action of tbe jury, on a motion to set aside tbe verdict, “It takes 13 men in tbis court to deprive a man of bis land, bis rights, or bis liberty.” It is not to be presumed tbat either party to tbis action contemplated such waiver of bis rights to have tbe judge supervise tbe action of tbe jury. It must expressly appear by tbe agreement tbat such waiver was made of tbis important right.
Tbe only reasonable and just construction of tbis agreement is tbat when tbe jury brought in their verdict in tbe absence of tbe judge tbe case should stand, precisely in tbe same light as it would have stood if tbe judge bad been present, and tbe verdict was rendered, and for tbe purposes of tbis ease, tbe term was constructively extended so tbat at any other time and place in tbe district tbe judge, counsel of both sides being present, should bear such motions as could have been beard if be bad been present at tbe return of tbe verdict, and should take such action as be could have done under such circumstances. Tbe agreement was tbat for tbe purposes of tbis action tbe term of tbe court was prolonged and tbis case should be treated by tbe judge as if tbat term of tbe court were in session. Tbe judgment should then be rendered. No agreement was necessary as to a mere formal signing.
It is true tbat tbe agreement might have been made longer and more explicit, but tbe one entered was tbat which is usually made and was intended only to transfer tbe case after verdict, or rather continue it, in tbe same plight and condition to be beard before tbe judge upon such motions as could have been made bad tbe judge remained and received tbe verdict, and be should render judgment.
Tbe only case tbat bears a contrary construction is Knowles v. Savage, 140 N. C., 372. With all respect to tbe distinguished'judge who wrote tbat opinion, for a unanimous Court, we think tbat tbis view of tbe matter was not presented nor passed upon; and tbat in view of tbe result of such ruling in depriving tbe losing party of tbe right to have tbe verdict reviewed, which be would have bad if tbe court bad remained in session, tbat part of tbe opinion in Knowles v. Savage should be not *634followed. A blind adherence to precedent may have a far worse effect in depriving parties of tbeir rights guaranteed by law, and in proper instances and when no property rights will be affected the opinion will be modified or overruled.
There are weighty reasons why this should be done in this case rather than deprive any party, “unbeknownst to himself” of his legal rights, and thus continue a practice which cannot subserve the ends of justice, which require that in every case the losing party should have the right to apply to the judge to revise and set aside the verdict, or at least to have his opinion upon it before he renders his judgment. An agreement to waive such rights must be explicit.
If the court had rendered judgment then signing it would have been a mere ministerial act, for which no agreement was necessary. The essential matter is that the judge should render judgment and until that has been done there has been no legal conclusion of the controversy.
There is no stipulation in this agreement that the judge should sign judgment “in accordance with the verdict.” "We should not insert these words. In literal compliance with the agreement he has signed judgment but the judgment is his own judgment, which in accordance with the power vested in him he has made “in his discretion and of his own motion,” setting aside the verdict because against the weight of the evidence. And this judgment should be
Affirmed.