Smith v. Moore
| Decision Date | 24 February 1909 |
| Citation | 150 N.C. 158,63 S.E. 735 |
| Court | North Carolina Supreme Court |
| Parties | SMITH . v. MOORE. |
A petition for rehearing resting on error in the opinion requires, under rule 53 (53 S. E. xi), before it can be docketed for consideration by the court, the approval of one or more justices.
[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 3234; Dec. Dig. § 833.*]
A motion before the Supreme Court for a new trial for newly discovered evidence is a matter for the full court like other motions.
[Ed. Note.—For other cases, see Courts, Cent. Dig. §§ 344-350; Dec. Dig. § 101.*]
Under Revisal 1905, § 604, providing that the stay of execution allowed on appeal shall not vacate the judgment appealed from, but the same shall remain in full force until reversed or modified, a motion for a new trial for newly discovered evidence in an action tried in the court below and appealed may, pending the appeal and when final judgment is rendered in the Supreme Court, be made in the Supreme Court, but, when the opinion has been certified down, such motion must be made in the court below.
[Ed. Note.—For other cases, see New Trial, Cent. Dig. §§ 234-236; Dec. Dig. § 114.*]
A mere application for rehearing, not ordered docketed by the justice to whom presented does not put the cause in the Supreme Court so as to give it jurisdiction of a motion for new trial for newly discovered evidence.
[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 3240; Dec. Dig. § 833.*]
An order to docket an application for rehearing is based on error of law in the previous decision, and a certificate to that effect will not be made merely to permit a motion in the Supreme Court, which can be made in the court below.
[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 3229; Dec. Dig. § 833.*]
Petition for rehearing and motion for a new trial for newly discovered evidence. Petition and motion denied.
For former opinion, see 62 S. E. 892.
After the opinion in this case had been certified down, the defendant filed a petition here to rehear and a motion for new trial for newly discovered evidence.
The petition to rehear rests upon alleged error in the opinion, and requires before it is docketed for consideration by the court the approval of one or more justices to whom it is submitted by the petitioner. Rule 53 (53 S. E. si). This approval the two justices to whom the petition was referred have felt impelled to decline. The motion for a new trial for newly discovered evidence is a matter for the full court like all other motions. The practice in such cases since the statute of 1887, now Revisal 1005, § 604, as laid down in Black v. Black, 111 N. C. 305, 16 S. E. 412. is: (1) When the case is pending here, this court can entertain a motion on the ground of newly discovered evidence, and, of course, it could do so even after the opinion is filed if before it is certified down; i. e., as long as the matter is in fieri. (2) When final judgment is rendered in this court as is still done, though not so often as formerly (R. R. Connection Case, 137 N. C. 21, 49 S. E. 191), the motion on the ground of newly discovered evidence must be made here and a petition to rehear filed. This is necessarily so in such cases, as the case is not sent back to the superior court at all. The petitioner misunderstood the reference to "final judgment rendered in this court, " for the next paragraph provides: (3) When the opinion has been certified down, such motion must be made in the superior court. To same effect Banking Co. v. Morehead, 126 N. C. 283, 35 S. E. 593. Turner v. Davis, 132 N. C. 189, 43 S. E. 637, was rested "on the peculiar facts of that case, " as is there stated.
The remedy of the petitioner is by motion on the ground of newly discovered evidence, made in the superior court....
To continue reading
Request your trial
-
State v. Casey
...court at the next term. Black v. Black, 111 N.C. 303, 16 S.E. 412; Banking Co. v. Morehead, 126 N.C. 282, 35 S.E. 593; Smith v. Moore, 150 N.C. 159, 63 S.E. 735." State v. Lilliston, 141 N.C. at pages 865, 866, 54 S.E. 427, 429, 115 Am. St. Rep. 705, speaking of criminal cases, we find: "In......
-
Ballard v. Ballard
...150 N.C. 222, 63 S.E. 1028; Fortune v. Hunt, 149 N.C. 358, 63 S.E. 82; Smith v. Moore, 149 N.C. 185, 62 S.E. 892, rehearing denied 150 N.C. 158, 63 S.E. 735; Tarlton v. Griggs, N.C. 216, 42 S.E. 591; Bailey v. Bailey, 52 N.C. 44; Gibson v. Partee, 19 N.C. 530; Kirk v. Turner, 16 N.C. 14; Mo......
-
Goodson v. Lehmon
... ... instance of defendants. Allen v. Gooding, 174 N.C ... 271, 273, 274, 93 S.E. 740; Smith v. Moore, 150 N.C ... 158, 63 S.E. 735. The appellants, the present defendants, ... were therefore, at the time they acquired title, purchasers ... ...
-
Goodson v. Lehmon
...in the Superior Court on January 15, at the instance of defendants. Allen v. Gooding, 174 N.C. 271, 273, 274, 93 S.E. 740; Smith v. Moore, 150 N.C. 158, 63 S.E. 735. The appellants, the present defendants, were therefore, at the time they acquired title, purchasers pendente lite. The questi......