Crow v. McCullen, 220 N.C. 306 (1941)

Nov. 5, 1941 · Supreme Court of North Carolina

220 N.C. 306

T. C. CROW, Administrator of E. B. McCULLEN, v. CECIL D. McCULLEN, EDNA McCULLEN McCOLMAN and LILLIE O. McCULLEN.

(Filed 5 November, 1941.)

1. Judgments § 18—

A judgment signed out of term and out of the county by consent, when docketed, becomes a judgment as of the trial term.

2. Trial § 47—

The judgment in this action was signed out of term and out of the county by consent. Thereafter at the next succeeding civil term the court granted defendant’s motion to set aside the judgment for newly discovered evidence. Held,: Upon the docketing of the judgment it became a judgment as of the trial term and in the absence of agreement preserving the right to move to set aside the judgment at a subsequent term, the trial court was without power to grant the motion.

Appeal by plaintiff from Thompson, J., at March Term, 1941, of DUPLIN.

This is an action to recover money alleged by tbe plaintiff administrator to belong to tbe estate of bis intestate and to be wrongfully withheld by tbe defendants.

Tbe case was beard at tbe January Term, 1941, of Duplin, at wbicb time a jury trial was waived and an agreement entered tbat tbe judge might find tbe facts and render judgment out of term and out of tbe county.

On 11 February, 1941, tbe judge signed judgment in favor of tbe plaintiff, wbicb was properly docketed in Duplin County on 14 February, 1941. On 24 February, 1941, tbe defendants filed with tbe clerk of the Superior Court of Duplin County notice of appeal to tbe Supreme Court dated 21 February, 1941, notice of wbicb appeal was given to tbe plaintiff by tbe clerk on 24 February, 1941. At tbe March Term, 1941, of Duplin County, upon motion of defendants’ counsel, tbe judge entered a judgment setting aside, for newly discovered evidence, tbe judgment theretofore rendered by him in favor of tbe plaintiff. To tbe later judgment tbe plaintiff excepted and appealed to tbe Supreme Court.

Butler & Butler and A. W. Byrd for plaintiff, appellant.

J. Faison Thomson and Rivers D. Johnson for defendants, appellees.

Sohenck, J.

We are constrained to bold tbat tbe judge erred in entering tbe judgment setting aside for newly discovered evidence tbe judgment theretofore entered by him in favor of tbe plaintiff.

Tbe judgment signed 11 February, 1941, and docketed 14 February, 1941, was signed out of term and out of tbe county by consent of tbe parties, but when docketed it became a judgment as of tbe January Term, 1941. Tbe January Term, 1941, expired 20 January, 1941. In tbe absence of any preservation by agreement of tbe right to move to set aside tbe judgment at a subsequent term, tbe judge was without authority to vacate tbe judgment after tbe term at wbicb it bad been rendered bad expired. Bisanar v. Suttlemyre, 193 N. C., 711, 138 S. E., 1; Acceptance Corp. v. Jones, 203 N. C., 523, 166 S. E., 504; Hinnant v. Ins. Co., 204 N. C., 307, 168 S. E., 199.

“It is well settled under our practice tbat a motion to set aside a verdict and grant a new trial upon tbe ground of newly discovered evidence must be made and determined at tbe same term at wbicb tbe trial is bad. . . . Tbe reasons why verdicts should not be set aside at subsequent terms, whether because against tbe weight of tbe evidence or for newly discovered testimony, is because bearing and determining such motions involve recollection by tbe trial judge of tbe testimony, tbe demeanor of tbe witnesses, and other incidents of tbe trial, wbicb are not so strongly impressed upon tbe memory of a judge tbat be may safely act upon them after adjournment. Knowles v. Savage, 140 N. C., 374.” Stilley v. Planing Mills, 161 N. C., 517, 77 S. E., 760.

Tbe judgment of tbe Superior Court setting aside for newly discovered evidence tbe judgment theretofore entered is

Reversed.