Scott v. Queen, 95 N.C. 340 (1886)

Oct. 1886 · Supreme Court of North Carolina

95 N.C. 340

L. M. SCOTT v. J. H. QUEEN.

Practice.

1. Where, by inadvertence, a judgment is entered in this Court for a new trial, when it should have been one remanding the case, it will be corrected on motion.

2. Where the relief sought in an action was the reformation of a deed, and for damages and a partition, and the Court below rendered judgment on the verdict in favor of the defendant, which was reversed on the appeal; It was held, that a venire de novo should not be granted, but the case should be remanded to be piroceeded with as if no erroneous ruling had been made.

MotioN by the plaintiff to correct a judgment of this Court made at October Term, 1886.

The facts appear in the opinion.

Mr. G. M. Busbee, for the plaintiff.

No counsel for the defendant.

Smith, C. J.

This action is prosecuted to obtain a reformation in the terms of the deed made by Mary McElrath, conveying the tract of land therein described, in equal parts to her daughters, the feme plaintiff and defendant, so that three-fourths of the estate shall vest in the former, and the remainder, one-fourth, in the latter — fora partition upon this basis, and for damages for spoliation and rent. No issues upon the demand for rent and damages were drawn up and submitted to the jury, and their findings were directed to the source from which came the funds used by the grantor in making the purchase. These were responded to favorably to the plaintiff; notwithstanding which, the court gave judgment against the plaintiff, and she appealed. Upon the hearing the judgment was reversed, and judgment inadvertently entered giving a new trial, instead of which, as there were undisposed matters in controversy, and partition to be made, the cause should have been remanded to be proceeded with as if no erroneous ruling had been made, and in accordance with the opinion of this Court.

The Court is now moved to correct the judgment entered at the last Term, notice thereof having been given the counsel for the defendant in the Court below. The motion is so far allowed as to strike out the order for a new trial, and remand the case to be proceeded with, after reversal of the judgment below. It is so ordered.

Remanded.