Wiggins v. Bunch

• Decision Date: 15 December 1971
• Docket Number: No. 7,7
• Citation: 280 N.C. 106,184 S.E.2d 879
• Court: North Carolina Supreme Court
• Parties: Emmett H. WIGGINS, Plaintiff, v. Miles E. BUNCH et al., Defendants, and State of North Carolina, Additional Defendant.

Page 879

184 S.E.2d 879

280 N.C. 106

Emmett H. WIGGINS, Plaintiff, v. Miles E. BUNCH et al., Defendants, and State of North Carolina, Additional Defendant.

No. 7.

Supreme Court of North Carolina.

Dec. 15, 1971.

Atty. Gen. Robert Morgan and Staff Atty. Rafford E. Jones, Raleigh, for the State of North Carolina, appellant.

Twiford & Abbott by Russell E. Twiford, Elizabeth City, for plaintiff appellee.

BRANCH, Justice.

The parties to this appeal do not present the question of whether the Superior Court had jurisdiction to enter the order of 1 July 1970.

For many years it has been recognized that as a general rule an appeal takes the case out of the jurisdiction of the trial court. In American Floor Machine Co. v. Dixon, 260 N.C. 732, 133 S.E.2d 659, it was stated:

'As a general rule, an appeal takes a case out of the jurisdiction of the trial court. Thereafter, pending the appeal, the judge is Functus officio. '. . . (A) motion in the cause can only be entertained by the court where the cause is.' Exceptions to the general rule are: (1) notwithstanding notice of appeal a cause remains In fieri during the term in which the judgment was rendered, (2) the trial judge, after notice and on proper showing, may adjudge the appeal has been abandoned, (3) the settlement of the case on appeal.

'. . . The appeal removed the case to the Superior Court for all purposes except the certification of a correct record. . . .'

Accord: Pelaez v. Carland, 268 N.C. 192, 150 S.E.2d 201; Hoke v. Greyhound Corp., 227 N.C. 374, 42 S.E.2d 407; State Bank v. Twitty, 13 N.C. 386.

Plaintiff made his motion to set aside the judgment pursuant to Rules 59 and 60 of the New Rules of Civil Procedure. We must therefore determine the effect of Rules 59 and 60 upon the above stated general rule as applied to the facts of this case. This presents a problem of first impression in this jurisdiction.

Rule 59 provides:

(a) Grounds.--A new trial may be granted to all or any of the parties and on all or part of the issues for any of the following causes or grounds: . . .

(4) Newly discovered evidence material for the party making the motion which he could not, with reasonable diligence, have discovered and produced at the trial;

(b) Time for motion.--A motion for a new trial shall be served not later than 10 days after entry of the judgment.

Clearly Rule 59 does not apply to the facts of this case since the motion for new trial was not made within the period of time specified by that rule.

Thus, if plaintiff is entitled to any relief, it must be found in the provisions of Rule 60.

Rule 60(b) in part provides:

(b) Mistakes; inadvertence; excusable neglect; newly discovered evidence; fraud, etc.--On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons:

(2) Newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b);

(6) . . . The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order, or proceeding was entered or taken. A motion under this section does not affect the finality of a judgment or suspend its operation. . . .

Pertinent parts of Federal Rule 60(b) provide:

On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: . . ..

(2) Newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b);

. . . The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order, or proceeding was entered or taken.

A motion under this section does not affect the finality of a judgment or suspend its operation.

The nearly identical provisions of our Rule 60(b) and Federal Rule 60(b) point to the Federal decisions for interpretation and enlightenment.

In the case of Switzer v. Marzall, 95 F.Supp. 721 (1951) the defendant filed a motion for a new trial and later gave notice of appeal. The appellate court in holding that the defendant removed the case from the jurisdiction of the trial court when he appealed, stated:

The basic rule is that two courts cannot have jurisdiction of the same case at the same time, and that on perfecting of appeal the lower court is ousted of its jurisdiction. Draper v. Davis, 102 U.S. 370, 26 L.Ed. 121; Keyser v. Farr, 105 U.S. 265, 26 L.Ed. 1025; Goldsmith v. Valentine, 35 App.D.C. 299; Lasier v. Lasier, 47 App.D.C. 80.

The question therefore narrows down to whether the principle has been modified by the 1948 amendments to the Federal Rules, particularly Rule 60(b).

Rule 60(b), as amended, provides that the court may relieve a party from a final judgment on the ground (among others) of newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b), that the motion shall be made not more than one year after the judgment was entered, and that such motion shall not affect the finality of a judgment or suspend its operation.

In Daniels v. Goldberg, D.C., 8 F.R.D. 580, 581, it is stated: 'The amendments to the Rules specifically give to the district court power to act in certain instances after an appeal has been filed, Rules 60(a) and 73(a), But none of these confer on a district court the power to vacate a judgment after an appeal has been filed.' (Emphasis ours)

This question was considered and summarily treated in the case of Norman v. Young, 422 F.2d 470 (10 Cir. 1970). There the Court stated:

'. . . The record reflects that on April 11, 1969, all parties stipulated at defendants' request that the supplemental proceedings be continued over and set for hearing at the Court's convenience. April 18 was the date set and on that day, before arguing his 60(b) motion, defendants' lawyer filed a notice of...