Whitaker v. Gilliam

Claeic, J. When this case was first heard, 121 N. C., 326, it was decided in favor of the plaintiff. On rehearing this judgment was reversed, 123 N. 0., 63. After the first judgment of this Court, and before the expiration of the time within which the application for rehearing could be filed, the plaintiff sold the land to the petitioners. Upon the going down of the certificate of the last opinion, the petitioners filed an affidavit, that they had purchased for value and without notice, and asked to be let in to assert their rights. The motion was denied. In a proper case, additional parties can be made, even after judgment, Code, sec. 273, but certainly it is useless when the grounds fully appear and can be adjudicated upon the motion, for none of their allegations are denied. Indeed, it appears *79 the petitioners took tbeir deed before the petition to rebear was filed, and therefore without notice of a rehearing; but they had notice by law of the fact that the rehearing could be applied for at any time till after the expiration of the first 20 days of the next term of the Supreme Court, and took the rights of the plaintiff — no more-^-which were subject to further review by a rehearing. No entry of lis pendens, under Code, sec. 229, is required in any case when the. action is in the county where the land lies. Collingwood v. Brown, 106 N. C., 362; Arrington v. Arrington, 114 N. C., 156. A party recovers a tract of land in the Superior Court. It is final unless appealed from, but the defendant has ten days after the adjournment of court in which to appeal. One who, relying upon the judgment of the Superior Court, takes a conveyance from the successful party before the expiration of the ten days, takes it subject to the right of appeal and of the judgment which may be entered therein; and he is conclusively fixed with notice of the litigation. Rollins v. Henry, 18 N. C., 342; Dancy v. Duncan, 96 N. C., 111. If a judgment is entered in this Court in certain cases a writ of error may be sued out to the United States Supreme Court in two years. The assignee of the judgment in such case takes subject to the action of the higher tribunal. A rehearing by this Court is in the nature of an appeal from this Court to itself. The Code, sec. 966, prescribes that if may be entered at any time before the expiration of the first 20 days of the next succeeding term. While it has been held that under the present Constitution (Article I, sec. 8), the Supreme Judicial Power being independent of the other departments, the Legislature can not prescribe rules of practice for this Court. (Herndon v. Insurance Co., 111 N. C., 384 ;Horton v. Green, 104 N. C., 400); yet this Court, under the power to prescribe and regulate its own methods of procedure and practice, has *80 copied, almost verbatim, the provisions of The Code, sec. 966, in its Rule 52, 119 N. C., 950. It was the petitioners’ own fault that they took a conveyance of the plaintiff’s recovery before the expiration of the period within which an application to rehear could be filed. If, by so doing, the rights of petitioners to rehear could be defeated, the relief intended to be given by such reviews of the action of the Court, would be almost, if not altogether, denied, by the anticipatory promptness of any party who might be affected by such reviews. It can make no difference that petitions to rehear are now, as appeals from the Superior Court formerly were, matters of grant and not of right. The effect upon the right of all parties when granted is the same. No error.