Sink v. Easter

BRITT, Judge. Defendant advances numerous contentions as to why the order of 16 May 1974 is invalid. One of these is that the court had no jurisdiction on 1 April 1974 to rescind its judgment entered 28 March 1974 denying plaintiff’s motion for relief under Rule 60. We find merit in this contention. When the court entered its judgment on 28 March 1974 denying plaintiff’s Rule 60 motion for relief, plaintiff, on the same day, gave notice of appeal and appeal entries were entered. The general rule as to jurisdiction of the trial court after notice of appeal has been given and appeal entries filed has been explicitly stated by our Supreme Court. In Wiggins v. Bunch, 280 N.C. 106, 108, 184 S.E. 2d 879, 880 (1971), we find: 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 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) notwith [299] standing 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. . . Accord: Pelaez v. Garland, 268 N.C. 192, 150 S.E. 2d 201; Hoke v. Greyhound Corp., 227 N.C. 374, 42 S.E. 2d 407; Bank v. Twitty, 13 N.C. 386; Equipment, Inc. v. Lipscomb, 15 N.C. App. 120, 189 S.E. 2d 498 (1972). The question arises as to whether Judge Wood’s action (there being no formal order or judgment) of 1 April 1974 comes within any of the exceptions to the general rule stated in the authorities above cited. Clearly, exceptions (2) and (3) would not be applicable. As to (1), this court takes judicial notice of the fact that on 1 April 1974 Judge Wood began presiding over a regular two-week session of Superior Court in Davidson County; therefore, his action in purporting to set aside his judgment of 28 March 1974, to which judgment notice of appeal had been filed and appeal entries made, was void since the cause was not in fieri during the session of superior court beginning on 1 April 1974. The plaintiff’s motion to abandon and withdraw her appeal on 9 May 1974 was from the notice of appeal given in the judgment filed 21 March 1974 and amended 28 March 1974, not from the denial of plaintiff’s motion under Rule 60(b) made on the same date. The order signed by Judge Wood on 15 May 1974, allowing plaintiff to abandon and withdraw an appeal, did not encompass the denial of plaintiff’s Rule 60 motion which Judge Wood on 1 April 1974 attempted to set aside but had no jurisdiction to do so. Therefore, the record does not disclose any abandonment of plaintiff’s appeal from the judgment and order of 28 March 1974 denying relief under Rule 60 (b). That being true, it follows that the superior court did not have jurisdiction to enter the order dated 16 May 1974 with respect to plaintiff’s Rule 60 motion since that appeal had not been abandoned. For the reasons stated, the order dated 16 May 1974 is Vacated. Judge Hedrick concurs. [300] Judge Baley dissents.