Johnston v. Danville, Mocksville & South-Western Railroad

Mkkrimon, C. J.: The statute (Acts 1887, ch. 192, § 3), among other things, provides that, “ In civil cases at the first term of the Superior Court after such certificate (that of the Supreme Court) is received, if the judgment is affirmed, the Court below shall direct the execution thereof to proceed, and if said judgment is modified, shall direct its modification and performance. If a new trial is ordered, the cause shall stand in its regular order on the docket for trial at such first term after the receipt of the certificate from the Supreme Court.” Obviously, this statutory provision is directory as to the mere forms to be observed. It does not mean or intend that if at the first term of the Court below after it received the certificate from this Court, it should fail for any cause to act upon the same, there coüld be no proper or sufficient action taken afterwards. It directs the orderly course to be observed, but it will be sufficient if the substance of the purpose of the statute is pursued. In effectuating such purpose, the orderly course and forms prescribed are almost necessarily subject to well known rules of prac *507 tice that prevail in the Courts. Regularly and orderly the certificate from this Court should be entered in the Court below at the first term after it is received there, and the judgment there made to conform to it. If the judgment is affirmed it would be sufficient to enter on the record, “ and accordingly the judgment of this Court is so affirmed ; let execution issue,” in proper cases. If the judgment is to be modified or amended, .then it ought to be said, “ accordingly the judgment of this Court is accordingly modified ” or “ is accordingly amended, and it is considered and adjudged,” etc.; or if a new trial is directed, in that case it should be entered, if the certificate so directs, “ accordingly itis ordered and adjudged that the judgment of the Court be reversed and a new trial awarded, and the case will stand for trial,” etc. Such orders should be so framed as to meet the purpose of the directions of the Court and the exigency of the case in the Court below. Besides, in cases so requiring, the Court below should enter appropriate judgments upon supersedeas undertakings, and for additional costs when there are properly such. When the appropriate judgment is entered, itis better and more orderly to direct formally that execution issue, but when judgment is entered, by implication and the rules of practice, execution must issue in pursuance thereof, and according to the course of practice. The statute recited above so implies and intends. It is practical and intends to promote and secure the ends of justice. In this case, the judgment appealed from and complained of as to matters of form and order, though fuller than need be and not so aptly expressed as it probably might be, is a substantial compliance with the order of this Court and with the statute above cited, except as to the costs of this Court. Judgment is entered here for the costs of this Court and ought not to be entered in the Court below, nor was it so intended in this case or directed. The certificate only embraced the judgment here for costs — it is so stated in the *508 certificate and this part of it might not inappropriately have been omitted — it was no more, however, than harmless, redundant matter, as was apparent. The judgment must be modified in so far as it refers to and embraces the costs of this Court so as to omit such costs, and thus modified, affirmed. Judgment modified.