Hoke v. Atlantic Greyhound Corp.

Barnhill, J. 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; S. v. Casey, 201 N. C., 185, 159 S. E., 337; S. v. Lea, 203 N. C., 316, 166 S. E., 292; S. 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; Lawrence v. Lawrence, 226 N. C., 221; Clark v. Cagle, 226 N. C., 230. “. . . ‘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; S. v. Godwin, 210 N. C., 447, 187 S. E., 560. *376 (2) Tbe judge presiding at a later term, after notice and on proper showingj may adjudge tbat tbe appeal bas been abandoned and proceed in tbe cause as if no appeal bad 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 tbe settlement of tbe case on appeal remains in tbe trial judge, G. S., 1-282, 283; S. v. Gooch, 94 N. C., 982; Boyer v. Teague, 106 N. C., 571; 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; or has retired, Ritter v. Grimm, 114 N. C., 373; Simonton v. Simonton, 80 N. C., 7. “It is tbe sole duty.of tbat judge, from whose judgment an appeal is taken, to settle tbe case on appeal for tbis Court. Tbe statute so contemplates, and, in tbe nature of tbe matter, another judge could not settle it for him. In such case, be alone is supposed to have tbe information essential to tbe proper settlement of tbe case. Hence, be alone can make proper corrections.” Boyer v. Teague, supra. “Where there is a controversy as to whether tbe case oil appeal was served within tbe time fixed or allowed, or service within such time waived, it is tbe duty of tbe trial court to find tbe facts, bear tbe motions and enter appropriate orders thereon.” Smith v. Smith, 199 N. C., 463, 154 S. E., 737; Pike v. Seymour, 222 N. C., 42, 21 S. E. (2d), 884. Tbe appeal entries as they appear of record under tbe signature of Pittman, J., show notice of appeal and extension of time by consent. He and be alone bad jurisdiction to modify, amend, or strike these entries. Likewise be alone could bear tbe motion to strike tbe purported case on appeal served by tbe appellees. There is, perhaps, further reason why tbe judgment below should not be disturbed. One Superior Court judge bas no power to review tbe 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. Tbis we need not now decide for we rest decision squarely on tbe want of jurisdiction in tbe court below to enter any order or decree pertaining to tbe appeal by tbe defendants in tbe absence of a showing tbat tbe appeal bas been abandoned. And certainly here there is no suggestion of an abandonment. Tbe appeal must be dismissed on authority of tbe line of decisions represented by Shepard v. Leonard, 223 N. C., 110, 25 S. E. (2d), 445; S. v. Morgan, 226 N. C., 414; and S. v. Jones, ante, 94. Plaintiff’s appeal dismissed.