Hoke v. Atl. Greyhound Corp., 527.

• Decision Date: 30 April 1947
• Docket Number: No. 527.,527.
• Parties: HOKE. v. ATLANTIC GREYHOUND CORPORATION et al.
• Court: North Carolina Supreme Court

227 N.C. 374
42 S.E.2d 407

HOKE.
v.
ATLANTIC GREYHOUND CORPORATION et al.

No. 527.

Supreme Court of North Carolina.

April 30, 1947.

[42 S.E.2d 407]

Appeal from Superior Court, Mecklenburg County; Geo. B. Patton, Special Judge.

Action to recover damages for wrongful death by D. A. S. Hoke, administrator of the estate of James Murray Pate, Jr., against Atlantic Greyhound Corporation and others. From a judgment denying plaintiff's motions to strike certain recitals and to strike the defendants' case on appeal, the plaintiff appeals.

Appeal dismissed.

See, also, 226 N.C. 692, 40 S.E.2d 345.

Civil action to recover damages for wrongful death, heard on motion to strike appeal entries in behalf of defendants Atlantic Greyhound Corporation and Yates Clyde Farris, and on motion to strike the case on appeal served by said defendants.

At the January Extra Term judgment was rendered against the defendants. By consent Pittman, J., the trial judge, signed judgment out of term. Thereafter he certified entries of appeal on behalf of appellees herein which recite notice of appeal in open court and agreement of counsel on time within which to serve case on appeal and countercase. Plaintiff, contending that these recitals are erroneous, moved to strike. He also moved to strike case on appeal subsequently served.

Nettles, J., "referred" the matter to Pitt-man, J., for a "finding of fact." Pursuant thereto Pittman, J., filed his "findings of fact." The court below, upon consideration of the motions and said "findings of fact" entered judgment denying the motions and plaintiff appealed.

[42 S.E.2d 408]

McDougle, Ervin, Fairley & Horack, of Charlotte, for plaintiff-appellant.

Smathers & Smathers, of Charlotte, and Smathers and Meekins, of Asheville, for defendants-appellees Atlantic Greyhound Corporation and Yates Clyde Farris.

BARNHILL, Justice.

An appeal from a judgment rendered in the Superior Court takes the case out of the jurisdiction of the Superior Court. Thereafter, pending the appeal, the judge is functus officio. Bledsoe v. Nixon, 69 N.C. 81; State v. Casey, 201 N.C. 185, 159 S.E. 337; State v. Lea, 203 N.C. 316, 166 S.E. 292; State v. Edwards, 205 N. C. 661, 172 S.E. 399; Vaughan v. Vaughan, 211 N.C. 354, 190 S.E. 492; Ragan v. Ragan, 214 N.C. 36, 197 S.E. 554; Ridenhour v. Ridenhour, 225 N.C. 508, 35 S.E.2d 617; Lawrence v. Lawrence, 226 N.C. 221, 37 S.E.2d 496; Clark v. Cagle, 226 N.C. 230, 37 S.E.2d 672.

" * * * 'the cause' is by the appeal taken out of the Superior Court and carried up to the Supreme Court" although the cost and stay bonds have not been filed and "of course a 'motion in the cause' can only be entertained by the court where the cause is." Bledsoe v. Nixon, supra.

To this general rule there are certain exceptions:

(1) A judgment is in fieri during the term at which it is rendered and the judge, non constat notice of appeal, may modify, amend, or set it aside at any time during the term. Cook v. Telegraph Co., 150 N.C. 428, 64 S.E. 204; State v. Godwin, 210 N.C. 447, 187 S.E. 560.

(2) The judge presiding at a later term, after notice and on proper showing, may adjudge that the appeal has been abandoned and proceed in the cause as if no appeal had been taken. Avery v. Pritchard, 93 N.C. 266; Jordan v. Simmons, 175 N.C. 537, 95 S.E. 919; Dunbar v. Tobacco Growers, 190 N.C. 608, 130 S.E. 505; Pentuff v. Park, 195 N.C. 609, 143 S.E. 139; Pruitt v. Wood, 199 N.C. 788, 156 S.E. 126.

(3) Jurisdiction of all matters pertaining to the settlement of the case on appeal remains in the trial judge, G.S. §§ 1-282, 1-283; State v. Gooch, 94 N.C. 982; Boyer v. Teague, 106 N.C. 571, 11 "S.E. 330; Thompson v. Williams, 175 N.C. 696, 95 S.E. 100; Chozen Confections, Inc. v...