Summerlin v. Cowles

• Decision Date: 01 December 1890
• Citation: 12 S.E. 234,107 N.C. 459
• Court: North Carolina Supreme Court
• Parties: Summerlin. v. Cowles.

107 N.C. 459

12 S.E. 234

Summerlin.

v.Cowles.

Supreme Court of North Carolina.

Dec. 1, 1890.

Appeal—Amendment of Opinion.

Where, on appeal from a judgment for defendant non obstante verdicto, the supreme court intend simply to reverse the judgment, but, by inadvertence, the words "and a new trial must be had in the court below, and we so adjudge" are added to the opinion after the words "the judgment is reversed, " the court may, on discovering the error, and without notice to the parties, strike out the former words, and the trial court thereafter properly renders judgment on the verdict for plaintiff without a new trial.

Appeal from superior court, Wilkes county; J. H. Merrimon, Judge.

R. B. Glenn, for appellant.

D. M. Furches, for appellee.

Merrimon, C. J. This case came before this court by a former appeal at the September term, 1888, and was then decided adversely to the defendant. 101 N.C.473, 7 S. E. Rep. 881. It appeared from the record in that appeal that "the jury found the issue in favor of the plaintiff, but the court, being of opinion that upon the facts proved the plaintiff was not entitled to recover, rendered judgment for defendant, and the plaintiff appealed." The decision of this court was to the effect that the court below erred in that it gave judgment for the defendant, and it simply re versed the judgment of the latter court. It was, however, added by mere inadvertence, at the end of the opinion of this court, after the words "the judgment is reversed, " the other words " and a new trial must be had in the court below, and we so adjudge." At the next suceeding term of this court, the counsel for the appellant in that appeal called the part of the order above mentioned (added by inadvertence) to the attention of the court, and it at once corrected the mistake by striking out the words "and a new trial must be had." No special notice of this correction was given to the appellee (the present appellant) before the same was made, but his counsel of record, who had argued the case for him, had informal notice that the plaintiff's counsel would bring the matter to the attention of this court. The judgment of this court, as so corrected, was duly certified to the superior court. It appears, among other things stated in the case settled on appeal, "that, at fall term, 1S89, of the superior court, the plaintiff moved for judgment upon the certificate of the supreme court, as thus amended, which was refused by the court, the defendant's counsel stating that a petition was on tile for a rehearing in the supreme court, which petition was afterwards refused. At March term, 1890, the plaintiff again moved the court for judgment, which motion is opposed by the defendant's counsel on the ground that a new trial had been awarded by the supreme court at September term, 1889, and that the subsequent proceedings in the supreme court were without notice to the defendant." Upon the verdict mentioned above, in favor of the plaintiff, the court gave judgment in her favor, and the defendant appealed to this court. The appellant's exception seems to rest upon the unfounded supposition that this court had no authority, without special notice to him, to strikeout of its order mentioned so much thereof as it did not intend to make or enter, and which was improperly entered by mere inadvertence. It certainly had such authority, and it was its duty to correct its records, and make them speak the truth by inserting what did not appear or striking out what improperly appeared. It might do so ex mero motu, or when the incorrect entry should be brought to its attention by the parties interested, or either of them, or by any other person. The power of the court for such...