Allen v. . Gooding
93 S.E. 740
N.C.
1917
Check Treatment

Allen, J.

Affidаvits were filed by tbe defendant before bis Honor, wbicb justified him in granting tbe motion for a new trial, if be bad аuthority in law to do so, and tbe decisions in this State sustain bis authority.

Tbe first case raising this question, after thе changes in procedure following the adoption of the Constitution of 1868, was Bledsoe v. Nixon, 69 N. C., 81, in wbicb it was held that an appeal took the whole case to the Supreme Court, and that when an appeal was taken the Superior Court could not entertain the motion.

This continued tо be the law until the act of 1887 was passed, and since then it has been settled that the casе remains in the Superior Court, and that ‍‌‌‌​​‌‌‌​‌‌‌​​​‌‌‌‌​​​​​​‌‌‌‌‌​‌‌‌‌‌‌​​‌​​‌​​​‌​‍while a motion for a new trial for newly discovered evidеnce may be considered in the Supreme Court while the appeal is pending therein, upon the judgment and opinion of the Supreme Court being certified to the Superior Court, the motiоn may be beard in the Superior Court at the next term. Black v. Black, 111 N. C., 303; Banking Co. v. Morehead, 126 N. C., 282; Smith v. Moore, 150 N. C., 159.

Tbe conditions existing in the Black case were identical with those before us, and thе Court says: “We are called upon in this case to construe the effect of the aсt of 1887 upon motions for new trials for newly discovered evidence in actions wbicb have been tried in the Superior Court, judgment rendered therein, taken by appeal to the Supreme Court, and the judgment affirmed and certified down, as in the present case, and by force of the statute the Superior Court is required to direct the execution thereof to procеed. Shall the practice settled in Bledsoe v. Nixon, supra, continue, or shall the motion now be made in the cоurt where the judgment stands?

There is no case pending nor judgment rendered in this Court, except tbe оrder affirming tbe judgment below ‍‌‌‌​​‌‌‌​‌‌‌​​​‌‌‌‌​​​​​​‌‌‌‌‌​‌‌‌‌‌‌​​‌​​‌​​​‌​‍and imposing tbe costs of appeal. To tbe Superior Court аlone can tbe application be made, for it alone *273 retains jurisdiction of the action. Motions for new trials for newly discovered evidence lrave been entertained in this Court pending the appeal, since the passage of the act of 1887 (Brown v. Mitchell, 102 N. C., 347), but our attention has been called to none, after a final disposition of the appeal by affirmance of the judgment. And the matter has been settled by the case last cited.

1. "We conclude that the proper practice is, that, pending appeals, such motions should be made in this Court, and when the final judgment has been rendered in this Court a petition to rehear should he filеd for the purpose of making the motion here.

2. But when the judgment of the Superior Court has beеn affirmed and the opinion certified down, and the matter finally ‍‌‌‌​​‌‌‌​‌‌‌​​​‌‌‌‌​​​​​​‌‌‌‌‌​‌‌‌‌‌‌​​‌​​‌​​​‌​‍disposed of in this Court, the motion (оr action in the nature of a bill of review, as was resorted to in Matthews v. Joyce, 85 N. C., 258) should be made or begun in the Suрerior Court, where the judgment was rendered.

This was affirmed in the Banking Company case and dealt with as a decision and not a dictum, the Court saying: “In Black v. Black, 111 N. C., 300, it was decided that, after a final decree in thе Supreme Court, a motion for a new trial upon newly discovered evidence could be made, and that it should be made in the Superior Court. If a new trial could be ordered by the Supеrior Court after a final decision in the Supreme Court, surely such a motion as the one madе in this case ought to have been granted, if the judge in his discretion thought it proper to grant it”; and in thе Smith case, in which it is said that the practice since the statute of 1887 is laid down in Black v. Black, and that “when the opinion hаs been certified down, ‍‌‌‌​​‌‌‌​‌‌‌​​​‌‌‌‌​​​​​​‌‌‌‌‌​‌‌‌‌‌‌​​‌​​‌​​​‌​‍such motion must be made in the Superior Court.”

The case of Turner v. Davis, 132 N. C., 188, is not in conflict with these deсisions. It was decided upon the ground that the motion must be heard in the Superior Court at the next tеrm after the opinion of the Supreme Court was certified down, and could not be continued to be heard at another term by another judge, and, as pointed out in Smith v. Moore, it rests on the peculiar facts of the case.

The cases relied on by the appellant to the effect that after final judgment in the Superior Court the judge сannot order a new trial at a subsequent term, have no application, for the reason that the appeal does not bring the case here since the act of 1887, and it remains alive in the Superior Court until the next term after the opinion is certified down, when judgment should bе entered according to the certificate.

As said in Lancaster v. Bland, 168 N. C., 377, “When judgment has been affirmed or reversed on appeal, it is a live case till, on receipt of the certificate, judgment has been entered below in conformity there *274 with, unless final judgment is entered here. Smith v. Moore, 150 N. C., 158.

Black v. Black, 111 N. C., 300, and Banking Co. v. Morehead, 126 N. C., 279, were live cases, in which proper motions could be made, because, though the certificate had ‍‌‌‌​​‌‌‌​‌‌‌​​​‌‌‌‌​​​​​​‌‌‌‌‌​‌‌‌‌‌‌​​‌​​‌​​​‌​‍been sent down, judgment had not bеen entered in accordance therewith in the court below.

"We therefore conclude that there was no error in entertaining the motion; and if the Superior Court had jurisdiction, it was a matter addressed to the discretion of the presiding judge, with which we cannot interfere unless there has been an abuse of the discretion, which we do not find to exist.

Affirmed.