State v. Patterson, 27 N.C. 89, 5 Ired. 89 (1844)

Dec. 1844 · Supreme Court of North Carolina

27 N.C. 89, 5 Ired. 89

THE STATE vs. THOMAS J. PATTERSON & AL.

Upon an appeal to this court, the appeal bond covers the costs both of this court and the court below.

Where upon an appeal to this court by a defendant in an indictment, judgment was directed to be entered by the court below, both for the punishment and the costs, and the court below at September Term, 1842, entered judgment only for the punishment, they had a right at September, 1844, upon a rule previously obtained for that purpose, to enter a judgment mme pro time for the costs also against the defendant and his surety, on his appeal to the Supreme Court.

The case of the State v. Saimder-s, 1 Hawks, 355, cited and approved.

Appeal from the Superior Court of Law of Surry County, at the Fall Term, 1844, his Honor Judge Manly presiding.

The case was this. Thomas Patterson was convicted of Bigamy, and appealed to this court, and for that purpose entered into bond with Greenberry Patterson, as his surety. The judgment was affirmed, and the certificate thereof sent down to the Superior Court at September Term, 1842, with directions to proceed to execute the sentence, and to give judgment for the costs in that court. At September Term, 1842, the Superior Court gave the judgment in obedience to the mandate from this court in regard to the punishment, but that respecting the costs was omitted. A rule was obtained at April Term, 1844, on the defendant and his surety, to shew cause why judgment should not be entered for the costs, or why that rendered in 1842 should not be amended by an entry there-: in, nunc -pro tunc, of a judgment for the costs. At September Term, 1844, the rule was made absolute, that judgment should be entered nunc pro tunc, and the defendant appealed.

Attorney General for the State.

No counsel in this court for the defendant.

Ruffin, C. J.

The State v. Saunders, 1 Hawks, 355, establishes, that upon an appeal to this court, the appeal bond covers the costs, both of this court and of the courts below. The 3 point has been considered as settled ever since. Some years Qne rpurner was convicted of murder in Granville, and prayed an appeal, which the Superior Court refused, unless he should give a bond, that should cover the costs in that court; and he then applied to this court for a certiorari, offering to give bond for the costs of this court, but the court refused it and he was executed.

As to the mode of entering the judgment, we see no objection. It is a common method of obtaining judgment on appeal bonds, to give notice of a motion, when it happened to be omitted at the rendering of the principal judgment. But there can be ,no doubt of the power of the court to supply a mere formal omission in entering up the judgment of that court, in conformity with the certificate from this court, and in obedience to its mandate. There is no adjudication in the case. That had been made here, or rather directed here, and it was the simple duty of the Superior Court, to enter the judgment in that court in accordance with it, which may be done at any time. If it were not done voluntarily, this court would enforce it by mandamus.

Per Curiam, Judgment affirmed.