Allen v. Gooding

• Decision Date: 10 October 1917
• Docket Number: 186.
• Parties: ALLEN v. GOODING.
• Court: North Carolina Supreme Court

93 S.E. 740

174 N.C. 271

ALLEN v. GOODING.

No. 186.

Supreme Court of North Carolina

October 10, 1917

Appeal from Superior Court, Carteret County; Stacy, Judge.

Suit by W. D. Allen against T. T. Gooding. Decree for plaintiff, and defendant appeals. No error was certified to the superior court, and defendant moves for a new trial. From an order granting a new trial, plaintiff appeals. Affirmed.

On appeal to the Supreme Court the case remains alive in the superior court until the case is certified back and final judgment entered in accordance with the certificate, and the superior court may entertain motion for a new trial for newly-discovered evidence at the next term prior to such final judgment.

This was a motion for a new trial upon the ground of newly discovered evidence. This action was tried before his honor C. C. Lyon, judge, and a jury, at the October term, 1916, of Carteret superior court. There was a verdict in favor of the plaintiff upon the issues submitted, and judgment rendered by his honor, Judge Lyon, at said term, and appeal was taken from said judgment to the Supreme Court of North Carolina and the opinion (91 S.E. 694) therein was filed March 7 1917, and certified to the superior court of Carteret county on the first Monday in April, 1917, but no judgment was entered in accordance with the opinion of the Supreme Court as the next term of Carteret superior court was the June term, 1917, at which term the motion for a new trial was made.

A petition to rehear was filed in the Supreme Court, and in connection therewith a motion was made for a new trial upon the ground of newly discovered evidence. The petition was denied and the motion was not considered, because the certificate of the Supreme Court had been certified to the superior court.

Affidavits were filed by both parties on the hearing of the motion in the superior court, and, after consideration thereof, his honor allowed the motion and ordered a new trial, and the plaintiff excepted and appealed, upon the ground that his honor had no power to grant the motion.

Moore & Dunn, of Newbern, for appellant.

A. D. Ward, of Newbern, Abernathy & Davis, of Beaufort, D. L. Ward, of Newbern, and R. E. Whitehurst, of Morehead City, for appellee.

ALLEN J.

Affidavits were filed by the defendant before his honor, which justified him in granting the motion for a new trial, if he had authority in law to do so, and the decisions in this state sustain his authority.

The first case raising this question, after the changes in procedure following the adoption of the Constitution of 1868, was Bledsoe v. Nixon, 69 N.C. 81, in which it was held that an appeal took the whole case to the Supreme Court, and that when an appeal was taken the superior court could not entertain the motion.

This continued to be the law until the act of 1887 was passed (Laws 1887, c. 192) and since then it has been settled that the case remains in the superior court, and that, while a motion for a new trial for newly discovered evidence may be considered in the Supreme Court while the appeal is pending therein, upon the judgment and opinion of the Supreme Court being certified to the superior court, the motion may be heard in the superior court at the next term. Black v. Black, 111 N.C. 303, 16 S.E. 413; Banking Co. v. Morehead, 126 N.C. 282, 35 S.E. 593; Smith v. Moore, 150 N.C. 159, 63 S.E. 735.

The conditions existing in the Black Case were identical with those before us, and the court says:

"We are called upon in this case to construe the effect of the act of 1887 upon motions for new trials for newly discovered evidence in actions which have been tried in the superior court, judgment rendered therein, taken by appeal to the Supreme Court, and the judgment affirmed and certified down, as in the present case, and by force of the statute the superior court is required to direct the execution thereof to proceed. Shall the practice settled in Bledsoe v. Nixon, supra, continue, or shall the motion now be made in the court where the judgment stands? * * * There is no case pending nor judgment rendered in this court, except the order affirming the judgment below and imposing the costs of appeal. To the superior court alone can the application be made, for it alone retains jurisdiction of the action. Motions for new trials for newly discovered evidence have been entertained in this court pending the appeal since the passage of the act of 1887, Brown v. Mitchell, 102 N.C. 347 [9 S.E. 702, 11 Am. St. Rep. 748]; but our attention has been called to none, after a final disposition of the

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