Hoke v. Atlantic Greyhound Corp.

• Decision Date: 30 April 1947
• Docket Number: 527.
• Citation: 42 S.E.2d 407,227 N.C. 374
• Parties: HOKE v. ATLANTIC GREYHOUND CORPORATION et al.
• Court: North Carolina Supreme Court

42 S.E.2d 407

227 N.C. 374

HOKE v. ATLANTIC GREYHOUND CORPORATION et al.

No. 527.

Supreme Court of North Carolina

April 30, 1947

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 Pittman, 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.

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 Clude 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. 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. 337, 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; Boywer 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. Johnson, 220 N.C. 432, 17 S.E.2d 505; even though he is out of the district, Owens v. Phelps, 92 N.C. 231; Cameron v. Power Co., 137 N.C. 99, 49 S.E. 76; or has retired, Ritter v. Grimm, 114 N.C. 373, 19 S.E. 239; Simonton v. Simonton, 80 N.C. 7.

"It is the sole duty of that judge from whose judgment an appeal is taken to settle the case on appeal for this court. * * * The statute so contemplates, and in the nature of the matter another judge could not settle it for him. In such case he alone is supposed to have the information essential to the proper settlement of the case. Hence he alone can make proper corrections." Boyer v. Teague, supra [106 N.C. 571, 11 S.E. 331].

"Where there is a controversy as to whether the case on appeal was served within the time fixed or allowed, or service within such time waived, it is the duty of the trial court to find the facts, hear motions, and enter appropriate orders thereon." Smith v. Smith, 199 N.C. 463, 154 S.E. 737, 738; 5iPike v. Seymour, 222 N.C. 42, 21 S.E.2d 884.

The appeal entries as they appear of record under the signature of Pittman, J., show notice of appeal and extension of time by consent. He and he alone had jurisdiction to modify, amend, or strike these entries. Likewise he alone could hear the motion to strike the purported case on appeal served by the appellees.

There is, perhaps, further reason why the judgment below should not be disturbed. One Superior Court judge has no power to review the findings, orders, and decrees of another Superior Court judge. Davis v. Land Bank, 217 N.C. 145, 7 S.E.2d 373; In re Adams, 218 N.C. 379, 11 S.E.2d 163. In re Adams, 218 N.C. 379, 11 S.E.2d 163. This we need not now decide for we...