Governor ex rel. State Bank v. Twitty, 13 N.C. 386, 2 Dev. 386 (1830)

June 1830 · Supreme Court of North Carolina

13 N.C. 386, 2 Dev. 386

The Governor, for the use of the State Bank, v. Allen Twitty, et al.

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After an appeal to this Court, the Court below can take no further order in the cause, unless a new trial is awarded here.

If judgment be arrested in this Court, the Court below can only collect the costs incurred there.

Upon an arrest of judgment, neither party recovers costs.

Where an error was committed in engrossing the judgment of this Court, it must be corrected by the minutes.

After the arrest of judgment in this cause (ante, val. 1, p. 153) the Clerk of this Court certified to the Clerk of the Court below, that the judgment of this Court was, “ that the judgment of the Superior Court of Rutherford “ be reversed, and that the judgment be arrested, and “ judgment against the relators for the costa of this Court <c and the Court below.”

Upon this certificate, the cause stood for several terms «pon the docket of Rutherford Court, and several rules were made in it. (Anfep. 176.) On the last circuit, on the motion of the Defendants, his Honor Judge Daniel, thinking the cause was finally disposed of by this Court, directed judgment to be entered according to the certificate. Upon which the relators appealed.

June, 1830.

Badger, for the relators.

Gaston, contra.

Per Curiam.

irt this case, the judgment of the Court below must be reversed \ because after the appeal to this Court in 1826, the Superior Court of Rutherford could take no farther order in the cause, unless a new trial Was directed by the Supreme Court. By the appeal, the whole case is removed, and never gets back, but for the purpose of a new trial. Here the judgment was arrested, and consequently the case came to an end here. The certificate sent down by the Clerk of this Court is rendered necessary by the act of 1825, thai the costs below may he collected. And in such a case as this, that is the sole purpose of it.

The Clerk however made a mistake, hot!) in the certificate sent to Rutherford, and in drawing out the judgment here. When judgment is arrested, neither party recovéi s costs, hut each pays his own. The original entry on the minutes is right. The error was committed in engrossing it. It must now be corrected by the minutes, and certified again to the Clerk of Rutherford Superior Court j which is ordered accordingly.