There are two appeals in this case, one from the judgment entered by the Clerk upon the verdict, and the other from the judgment rendered by the judge at the next term, nunc pro tunc, but for convenience both can be disposed of together.
The verdict was rendered at 11:40 p. m., Saturday of the second week. This case differs from Delafield v. Construction Co., 115 N.C. 21, in that the judge had not left the court, and though he was not in the court room in person when the verdict was rendered, it was received by the clerk, by consent of parties, and was therefore a valid judgment in all respects. The term was not extended by the judge, as authorized by chapter 226, Laws 1893, but the verdict was within the limits of the term if the judge were present, and he was present through the clerk, who could, by consent of parties, represent him for the purpose of receiving the verdict. S. v. Austin, 108 N.C. 780. If the clerk thereupon had entered up the judgment, it would unquestionably have (212)
been valid, for The Code, sec. 412 (1) provides that, upon receiving the verdict, "if a different direction be not given by the court, the clerk must enter judgment in conformity with the verdict." Even if the clerk had merely entered a memorandum, as "judgt.", it would have been sufficient, according to the authorities, and the judgment in full could have been drawn out thereafter. Davis v. Shaver, 61 N.C. 18; Jacobs v. Burgwyn,63 N.C. 193. But neither judgment nor memorandum of judgment was entered, there being no action whatever taken beyond receiving the verdict. It was, therefore, clearly incompetent for the clerk to attempt to enter judgment on the Monday following. It must be declared a nullity, and in the appeal from the same the appellee will pay the costs in this Court.
At the next term the record presented the case of a valid verdict, but with no judgment entered thereon. The judge could not set aside the verdict rendered at the previous term; and if he could not enter judgment upon the facts found by the jury by their recorded verdict, the matter would have been forever suspended, like Mahomet's coffin.
"In Aladdin's tower Some unfinished window unfinished must remain."
Not so in legal proceedings which deal with matters of fact, not fancy. The judge, at the next term, seeing the record complete up to and including the verdict, properly rendered judgment nunc pro tunc. This was practical common sense and is justified by precedent. Bright v.Sugg, 15 N.C. 492; Long v. Long, 85 N.C. 415; Smith v. State,1 Tex. App., 408. As to difficulties suggested, it may be observed that, while the judgment as between the parties is entered as of the former term,nunc pro tunc, as to third parties it can only be a lien from the docketing, which by The Code, sec. 433, has effect from the first day of (213) the term at which it was actually entered. In the present case the judge at the second term who rendered the judgment was the same who had presided at the trial term; but had there been different judges at the two terms it is the latter who in case of disagreement should settle the case. The matters excepted to, up to and including the verdict, should be settled by the first judge, and his statement sent up in the case made by the last judge, as is the case with exceptions as to matters not immediately appealable for lack of final judgment; as in Jones v. Call,89 N.C. 188; S. c., 96 N.C. 337; Blackwell v. McCaine, 105 N.C. 460. It is also excepted to this last judgment that the case was in the Supreme Court by appeal from the alleged judgment by the clerk; but, as we have seen, that attempted judgment was a nullity, and of no more effect than would have been the same entry on the record by
a stranger. The judge properly treated it as a nullity, and the appeal from such unauthorized entry on the record could not have the effect to take the case into this Court so as to subtract it from legal orders of the judge presiding in the court below. No notice of motion was necessary at term time in a cause pending on the docket. Coor v. Smith, 107 N.C. 430;Sparrow v. Davidson, 77 N.C. 35; University v. Lassiter, 83 N.C. 38, and other cases cited in Clark's Code (2 Ed.), p. 652.
A careful examination of the exceptions to instructions given, and for refusal to give instructions prayed, shows no error. Without taking them up in detail, the court below is sustained by the principles laid down in Lewis v. Rountree, 78 N.C. 323; Love v. Miller, 104 N.C. 582;Blacknall v. Rowland, 108 N.C. 554; S. c., 116 N.C. 389. The tobacco was sold by sample and examination of outside bulks, (214) and upon representations made by the defendant. The defects were latent and as to matters peculiarly within the knowledge of the defendant.
NO ERROR.
Cited: Taylor v. Ervin, post, 277, 278; Knowles v. Savage, 140 N.C. 374;Barger v. Alley, 167 N.C. 363; Brown v. Harding, 170 N.C. 261; S.c., 171 N.C. 687; Pfeifer v. Drug Co., ib., 216; Hardware Co. v. Holt,173 N.C. 311.