State v. Davis
| Decision Date | 15 June 1932 |
| Docket Number | No. 585.,585. |
| Citation | 203 N.C. 35,164 S.E. 737 |
| Court | North Carolina Supreme Court |
| Parties | STATE . v. DAVIS et al. |
On Motion to Review Record and Reconsider Opinion.
This is a summary motion made under authority of State v. Ice & Fuel Co., 166 N. C. 403, 81 S. E. 956, 52 L. R. A. (N. S.) 219, Ann. Cas. 1916C, 728, to reconsider the opinion filed in this case before it is certified down, and to order a reargument or to reverse the decision.
Counsel have misconceived the scope and purpose of the decision in the Ice Company Case. It was not there intended to authorize such a motion as a substitute for a rehearing, or an appeal from this court to itself, but only to correct some patent error, or to prevent a clear miscarriage of justice. Teeter v. Southern Express Co., 172 N. C. 620, 90 S. E. 927.
True, if by inadvertence the opinion of the court should close with the entry "affirmed" when it was clearly intended to be "reversed, " or vice versa, or in case of a mistake of like character, the court, on motion, will correct the judgment to correspond with the opinion. Bernhardt v. Brown, 118 N. C. 701, 24 S. E. 527, 715, 36 L R. A. 402. Entries have been changed from "reversed" to "affirmed, " from "new trial" to "remanded, " and other modifications ordered so as to make the judgments correspond with what the court actually decided. Cook v. Moore, 100 N. C. 294, 6 S. E. 795, 6 Am. St. Rep. 587; Summerlin v. Cowles, 107 N. C. 459, 12 S. E. 234; Solomon v. Bates, 118 N. C. 321, 24 S. E. 746. In most if not all of these cases, it was held that the court might proceed ex mero motu, but in Durham v. Cotton Mills, 144 N. C. 705, 57 S. E. 465, 11 L. R. A. (N. S.) 1163, it was suggested, as the better practice, to do so only after notice to the party to be affected by the correction, especially if the change be material. Summerlin v. Cowles, supra.
This summary method of procedure is not available in ordinary cases, but only in rare and exceptional instances, just as a motion for new trial on the ground of newly discovered evidence, made in the superior court at the next succeeding term following affirmance of judgment on appeal (Allen v. Gooding, 174 N. C. 271, 93 S. E. 740, State v. Casey, 201 N. C. 620, 161 S. E. 81), would prove fruitless in the ordinary case, and may not be extended to permit a defendant, who has offered no evidence, to change his mind after losing, and thus seek to retrieve his supposed error by opportunity of another hearing. Both counsel and litigants are...
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- State v. Davis
- State v. Davis