Carter v. Elmore, 119 N.C. 296 (1896)

Sept. 1896 · Supreme Court of North Carolina

119 N.C. 296

J. R. CARTER and wife v. G. W. ELMORE.

Judgment, Insensible and Void — Appeal.

A pretended judgment which adjudges nothing against the defendant, and on which an execution cannot issue, is insensible and no appeal lies therefrom.

Civil actioN,-tried before Graham, J., and a jury, at October Term, 1896, of SAMPSON Superior Court, on appeal from a judgment of a justice of-the peace. The judgment rendered in the superior court was as follows :

“The jury having found the issue as follows: Is the defendant indebted to plaintiff, and if so, in what amount? Ans., ‘ Yes, $40.’

“ This cause coming on to be heard, and the issue of no debt having been submitted to the jury, and they having found that the defendant, G. W. Elmore, is indebted to the plaintiff, John Carter, in the sum of $40, and all costs of this action, to be taxed by the clerk.

“(Signed), GRAHAM, J.”

Defendant appealed.

Mr. F. P. Jones, for defendant (appellant).

No counsel, contra.

Clark, J". :

The judgment sent up in the record is insensible, and does not adjudge anything against the defendant. No execution can issue upon it, and the defendant has nothing from which to appeal. Bostic v. Taylor, 93 N. C., 415 ; Baum v. Shooting Club, 94 N. C., 217; State v. Lockyear, 95 N. C., 633; Rosenthal v. Roberson, 114 N. C., 594. Deeming there might possibly be an inadvertence in entering the judgment or in copying it for the transcript on appeal, the Court at last term continued the cause, and the defect was called to the attention of counsel to the end that if they thought proper, the judgment might be amended below, or that the transcript might be corrected if the error was in copying. No correction has been made, and the Court will not, after such notice,remand ex mero motu, and no motion being made by eithei party to remand, we will now direct the entry, appeal dismissed.

Dismissed.