Halyburton v. Carson, 80 N.C. 16 (1879)

Jan. 1879 · Supreme Court of North Carolina

80 N.C. 16

J. C. HALYBURTON and others v. JOHN CARSON, Executor.

Practice — Judgment—Power to vacate.

A Court may vacate or modify its judgment during the term.

(Fcdrcloth v. Isler, 76 N. C., 49; Dick v. Dickson, 63 N. C.', 488; 'Sneed v. Leigh, 3 Dev., 364, cited and approved.)

Appeal from an order made at spring term, 1878, of McDowell superior, court, by Cloud, J. \

. Upon complaint and answer and the report of a referee filed in the cause, His Honor on motion of plaintiffs’ attorney, gave judgment against defendant. And on a subsequent day of the same term, on motion of defendant’s attorney, His Honor ordered that said judgment be vacated on the ground that the court erred in granting it, and from, this the plaintiffs appealed.

No counsel in this court for plaintiffs.

Messrs. Gilliam & Gatling and J. G. Bynum, for defendant..

Ashe, J.

The only question presented for the consideration and decision of this court in this voluminous record of' seventy-two pages is, whether a judge of a superior court has the power to vacate a judgment rendered by him during the same term.

It is familiar learning that all the proceedings of a court of record are in fieri — under the absolute control of the-judge, subject to be amended, modified or annulled at any time before the expiration of the term in which they are had or done.

Faircloth v. Isler, 76 N. C. 49; Dick v. Dickson, 63 N. C. 488; Sneed v. Leigh, 3 Dev. 364; Coke upon Littleton 1st Am. Ed. 260 (a.)

No error. Affirmed.