Howard v. Boyce, 26 N.C. App. 689 (1975)

Aug. 6, 1975 · North Carolina Court of Appeals · No. 751SC262
26 N.C. App. 689
FRANCES BADHAM HOWARD, FANNIE BADHAM, BESSIE B. SMALL, SIDNEY BADHAM, MILES BADHAM, PENELOPE OVERTON, ALEXANDER BADHAM, CHARITY BADHAM, CHARLES BADHAM, PAULINE B. TURNER, FRANK BADHAM, SADIE B. HAWKINS, JAMES BADHAM, and all Other Heirs at Law of HANNIBAL BADHAM, Deceased v. LONNIE BOYCE (Now Deceased), Original Defendant, and CELIA U. BOYCE, Individually and CELIA U. BOYCE and NAOMI MORRIS, Executrices of the Estate of A. C. Boyce, Sometimes known as Lonnie Boyce

FRANCES BADHAM HOWARD, FANNIE BADHAM, BESSIE B. SMALL, SIDNEY BADHAM, MILES BADHAM, PENELOPE OVERTON, ALEXANDER BADHAM, CHARITY BADHAM, CHARLES BADHAM, PAULINE B. TURNER, FRANK BADHAM, SADIE B. HAWKINS, JAMES BADHAM, and all Other Heirs at Law of HANNIBAL BADHAM, Deceased v. LONNIE BOYCE (Now Deceased), Original Defendant, and CELIA U. BOYCE, Individually and CELIA U. BOYCE and NAOMI MORRIS, Executrices of the Estate of A. C. Boyce, Sometimes known as Lonnie Boyce

No. 751SC262

(Filed 6 August 1975)

Appeal and Error § 16 — appeal pending — authority of court — entry of summary judgment

When plaintiffs appealed from an order entered 14 November 1974 denying their motions to set aside a prior judgment, the trial court became functus officio and had no authority to enter summary judgment.against plaintiffs on •4'.December 1974.

*690Appeal by plaintiffs from Cowper, Judge. Judgment entered 19 December 1974 in Superior Court, Chowan County. Heard in the Court of Appeals 28 May 1975.

The facts of this case are set out more fully in the companion cases, Howard v. Boyce, No. 751SC121, and Overton v. Boyce, No. 751SC261, filed this day. In Howard v. Boyce, supra, plaintiffs in the instant case appealed from an order issued 14 November 1974 denying their motions to set aside a prior judgment. On 4 December 1974 defendants filed a motion for summary judgment, and on 19 December the court entered judgment allowing the motion. Plaintiffs appealed.

Richard E. Powell for plaintiff appellants.

Pritchett, Coolce & Burch, by J. A. Pritchett, W. L. Cooke, and W. W. Pritchett, Jr., for defendant appellees.

ARNOLD, Judge.

When an appeal is pending the trial court is functus officio. It has no authority to issue further orders in the case. Wiggins v. Bunch, 280 N.C. 106, 184 S.E. 2d 879 (1971). Consequently, ' plaintiffs’ appeal from the November 14 order precluded the subsequent entry of summary judgment against them. The December 19 judgment therefore must be vacated- and the cause remanded for proceedings in accordance with our opinions in cases No. 751SC121 and 751SC261.

Vacated and remanded.

Judges Martin and Clark concur.