Hoke v. Atlantic Greyhound Corp., 227 N.C. 374 (1947)

April 30, 1947 · Supreme Court of North Carolina
227 N.C. 374


(Filed 30 April, 1947.)

1. Appeal and Error § 14—

After appeal from judgment rendered, the Superior Court has no further jurisdiction of the cause, except that (1) the trial court during the term may modify, amend or set the judgment aside, (2) the judge presiding at a subsequent term may adjudge that the appeal has been abandoned and proceed as though no appeal had been taken, (3) the trial judge has jurisdiction of all matters pertaining to settlement of case on appeal.

2. Judgments § 20a—

During the term a judgment is in fieri, and the trial judge, non constat notice of appeal, may modify, amend or set it aside at any time during the term.

S. Appeal and Error § 30a—

The judge presiding, after notice and on proper showing, may adjudge that an appeal taken at a prior term had been abandoned, and proceed in the cause as if no appeal had been taken.

4. Appeal and Error § lOe—

The trial judge alone has jurisdiction of matters pertaining to settlement of case on appeal, even though he is out of the district or has retired, and he alone has jurisdiction to modify, amend or strike out entries of appeal or extension of time for service of case on appeal and countercase, or motion to strike out purported case on appeal.

5. Appeal and Error § 31j: Courts § 5—

Plaintiffs, contending that the recitals of notice of appeal and agreement for extension of time of service of case on appeal and countercase, signed by the trial judge, were erroneous, moved before another judge at a subsequent term to strike appeal entries and the case on appeal subsequently *375served. Plaintiff appealed from judgment denying these motions. Held: The court was without jurisdiction to hear the motions and the appeal therefrom is dismissed.

Appeal by plaintiff from Fatton, Special Judge, at February Extra Term, 1947, of MeckleNbueg.

Civil action to recover damages for wrongful death, beard on motion to strike appeal entries in behalf of defendants Atlantic Greyhound Corporation and Yates Clyde Farris, and on motion to strike the ease on appeal served by said defendants.

At the January Extra Term judgment was rendered against the defendants. By consent Pittman, J., the trial judge, signed judgment out of term. Thereafter he certified entries of appeal on behalf of appellees herein which recite notice of appeal in open court and agreement of-counsel on time within which to serve case on appeal and countercase. Plaintiff, contending that these recitals are erroneous, moved to strike. He also moved to strike case on appeal subsequently served.

Nettles, J., “referred” the matter to Pittman, J., for a “finding of fact.” Pursuant thereto Pittman, J., filed his “findings of fact.” The court below, upon consideration of the motions and said “findings of fact” entered judgment denying the motions and plaintiff appealed.

McDougle, Ervin, Fairley & Horade for plaintiff, appellant.

Smathers & Smathers and Smathers $ Meeleins for defendants Atlantic Greyhound Gorporation and Yates Clyde Farris, appellees.

Barnhill, J.

An appeal from a judgment rendered in the Superior Court takes the case out of the jurisdiction of the Superior Court. Thereafter, pending the appeal, the judge is functus officio. Bledsoe v. Nixon, 69 N. C., 81; S. v. Casey, 201 N. C., 185, 159 S. E., 337; S. v. Lea, 203 N. C., 316, 166 S. E., 292; S. v. Edwards, 205 N. C., 661, 172 S. E., 399; Vaughan v. Vaughan, 211 N. C., 354, 190 S. E., 492; Ragan v. Ragan, 214 N. C., 36, 197 S. E., 554; Ridenhour v. Ridenhour, 225 N. C., 508; Lawrence v. Lawrence, 226 N. C., 221; Clark v. Cagle, 226 N. C., 230.

“. . . ‘the cause’ is by the appeal taken out of the Superior Court and carried up to the Supreme Court” although the cost and stay bonds have not been filed and “of course a ‘motion in the cause’ can only be entertained by the court where the cause is.” Bledsoe v. Nixon, supra.

To this general rule there are certain exceptions :

(1) A judgment is in fieri during the term at which it is rendered and the judge, non constat notice of appeal, may modify, amend, or set it aside at any time during the term. Cook v. Telegraph Co., 150 N. C., 428, 64 S. E., 204; S. v. Godwin, 210 N. C., 447, 187 S. E., 560.

*376(2) Tbe judge presiding at a later term, after notice and on proper showingj may adjudge tbat tbe appeal bas been abandoned and proceed in tbe cause as if no appeal bad been taken. Avery v. Pritchard, 93 N. C., 266; Jordan v. Simmons, 175 N. C., 537, 95 S. E., 919; Dunbar v. Tobacco Growers, 190 N. C., 608, 130 S. E., 505; Pentuff v. Park, 195 N. C., 609, 143 S. E., 139; Pruitt v. Wood, 199 N. C., 788, 156 S. E., 126.

(3) Jurisdiction of all matters pertaining to tbe settlement of tbe case on appeal remains in tbe trial judge, G. S., 1-282, 283; S. v. Gooch, 94 N. C., 982; Boyer v. Teague, 106 N. C., 571; Thompson v. Williams, 175 N. C., 696, 95 S. E., 100; Chozen Confections, Inc., v. Johnson, 220 N. C., 432, 17 S. E. (2d), 505; even though he is out of the district, Owens v. Phelps, 92 N. C., 231, Cameron v. Power Co., 137 N. C., 99; or has retired, Ritter v. Grimm, 114 N. C., 373; Simonton v. Simonton, 80 N. C., 7.

“It is tbe sole duty.of tbat judge, from whose judgment an appeal is taken, to settle tbe case on appeal for tbis Court. Tbe statute so contemplates, and, in tbe nature of tbe matter, another judge could not settle it for him. In such case, be alone is supposed to have tbe information essential to tbe proper settlement of tbe case. Hence, be alone can make proper corrections.” Boyer v. Teague, supra.

“Where there is a controversy as to whether tbe case oil appeal was served within tbe time fixed or allowed, or service within such time waived, it is tbe duty of tbe trial court to find tbe facts, bear tbe motions and enter appropriate orders thereon.” Smith v. Smith, 199 N. C., 463, 154 S. E., 737; Pike v. Seymour, 222 N. C., 42, 21 S. E. (2d), 884.

Tbe appeal entries as they appear of record under tbe signature of Pittman, J., show notice of appeal and extension of time by consent. He and be alone bad jurisdiction to modify, amend, or strike these entries. Likewise be alone could bear tbe motion to strike tbe purported case on appeal served by tbe appellees.

There is, perhaps, further reason why tbe judgment below should not be disturbed. One Superior Court judge bas no power to review tbe findings, orders, and decrees of another Superior Court judge. Davis v. Land Bank, 217 N. C., 145, 7 S. E. (2d), 373; In re Adams, 218 N. C., 379, 11 S. E. (2d), 163. Tbis we need not now decide for we rest decision squarely on tbe want of jurisdiction in tbe court below to enter any order or decree pertaining to tbe appeal by tbe defendants in tbe absence of a showing tbat tbe appeal bas been abandoned. And certainly here there is no suggestion of an abandonment.

Tbe appeal must be dismissed on authority of tbe line of decisions represented by Shepard v. Leonard, 223 N. C., 110, 25 S. E. (2d), 445; S. v. Morgan, 226 N. C., 414; and S. v. Jones, ante, 94.

Plaintiff’s appeal dismissed.