Ferrell v. Hales
| Decision Date | 10 November 1896 |
| Citation | 119 N.C. 199,25 S.E. 821 |
| Court | North Carolina Supreme Court |
| Parties | FERRELL et al. v. HALES (two cases). |
Trial—Entry of Verdict — Judgment—Entry by Clerk—Entry Nunc pro Tunc—Operation and Effect—Effect of Appeal.
1. A verdict received by the clerk by consent
of parties, though the judge was not present at
the time, is valid.
2. A verdict was returned on Saturday, the last day of the term, and, in the absence of the judge, was, by consent, received by the clerk. No entry of judgment was made at the time. Held, that a judgment entered by him the following Monday was a nullity.
3. An appeal therefrom did not operate to remove the record so aa to render invalid an order entered by the judge at the next term.
4., A verdict was returned into court on the last day of the term, and, the judge not being present, was, by consent of parties, received by the clerk. At the next term the judge ordered the entry of judgment nunc pro tunc. Held that, as between the parties, the judgment was operative as though entered at the former term.
5. It was not essential to the validity of such judgment that notice of the entry should have been given.
6. Under Code, § 433, providing that a judgment is a lien from the first day of the term at which it is entered, a judgment entered nunc pro tunc on a verdict entered at a former term is, as to third parties, effective only from the term at which it was docketed.
7. Where tobacco is sold by sample, examination of outside bulks, and representations by the vendor, he is liable for latent defects.
Appeal from superior court, Durham county; Coble, Judge.
Action by W. L. Ferrell and W. N. Carter against J. J. Hales to recover damages from false representations on a sale of tobacco. Judgment for plaintiffs, and defendant appeals. Affirmed.
Manning & Foushee, H. G. Connor, and Shepherd & Busbee, for appellant.
Winston & Fuller and Boone & Bryant, for appellees.
There are two appeals in this case, one from the judgment entered by the clerk upon the verdict, and the other from the judgment rendered by the judge at the next term, nunc pro tunc; but for convenience both can be disposed of together. The verdict was rendered at 11:40 p. m., Saturday, of the second week. This case differs from Delafield v. Construction Co., 115 N. C. 21, 20 S. E. 167, in that the judge had not left the court, and, though he was not in the court room in person when the verdict was rendered, it was received by the clerk by consent of parties, and was, therefore, a valid judgment in all respects. The term was not extended by the judge, as authorized by chapter 226, Acts 1893, but the verdict was within the limits of the term if the judge were present; and he was present through the clerk, who could, by consent of parties, represent him for the purpose of receiving the verdict. State v. Austin, 108 N. C. 780, 13 S. E. 219. If the clerk thereupon had entered up the judgment, it would unquestionably have been valid, for the Code, § 412 (1), provides that upon receiving the verdict, "if a different direction be not given by the court, the clerk must enter judgment In conformity with the verdict." Even if the clerk had merely entered a memorandum as "Judgt, " it would have been sufficient, according to the authorities, and the judgment in full could have been drawn out thereafter. Davis v. Shaver, 61 N. C. 18; Jacobs v. Burg-wyn, 63 N. C. 193. But neither judgment noi memorandum of judgment was entered, therebeing no action whatever taken beyond receiving the verdict It was, therefore, clearly incompetent for the clerk to attempt to enter judgment on the Monday following. It must be declared a nullity, and in the appeal from the same the appellees will pay the costs in this court.
At the next term the record presented the case of a valid verdict, but with no judgment entered thereon. The judge could not set aside a verdict rendered at the previous term; and, if he could not enter judgment upon the facts found by the jury by their recorded verdict, the matter would have been forever suspended, like Mahomet's coffin.
"In Aladdin's tower "Some unfinished window unfinished must remain."
Not so in legal proceedings, which deal with matters of fact, not fancy....
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Veazey v. City of Durham, 743
...by his decision. Collins v. Wooten, 212 N.C. 359, 193 S.E. 835. A court may always treat a void order as a nullity. Ferrell v. Hales, 119 N.C. 199, 25 S.E. 821. The case at bar is substantially on 'all fours' with State v. Dewey, supra, where the accused took an appeal at the April, 1905, T......
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Maroney v. Tannehill
...Waldheim, 89 Mo. App. 245; Reid et al. v. Morton, 119 Ill. 118, 6 N.E. 414; Chissom et al. v. Barbour et al., 100 Ind. 1; Ferrell v. Hales, 119 N.C. 199, 25 S.E. 821; Dial Adm., v. Holter, 6 Ohio St. 228; Fisk v. Osgood (Neb.) 2 Neb. Unoff. 100, 96 N.W. 237; Stern v. Bennington (Md. App.) 1......
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Lee v. Rhodes
...based thereon may be entered nunc pro tunc at a succeeding term. McDonald v. Howe, supra; Brown v. Harding, supra; Ferrell v. Hales, 119 N.C. 199, 25 S.E. 821; Grantham v. Kennedy, 91 N.C. 148; Logan v. Harris, 90 N.C. 7, 8; Jacobs v. Burgwyn, 63 N.C. 193; Davis v. Shaver, 61 N.C. 18, 91 Am......
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