20 N.C. 271 | N.C. | 1839
Upon examination of the record in this case, we are of opinion that we cannot take jurisdiction of it. Appeals to this Court from judgments in the Superior Courts,are of two kinds. Appeals may be allowed from an j final judgment, sentence or decree of the Superior Court; and in every case of such appeal, the Supreme Court may render such sentence, judgment or decree as, on the inspection of the whole record, it shall appear to them ought in law to be ren-
The record transmitted to us purports to be the record of the cause. It contains the pleadings, the issues and the finding of the jury thereon. It sets forth a case in the nature of a bill of exceptions, shewing the legal matters urged by the defendant on the trial of the issue, and the instructions prayed in' relation thereto, the refusal of the court to give such instructions, and the exceptions of defendants to that refusal. It further shews, that a motion for a new trial was made by the defendants, and that this motion was over-ruled; that a judgment was thereupon rendered that the plaintiff do recover of the defendants the sum of eighty-four dollars and fifty cents with interest on $50, from the 30th of April, 1839, until paid and costs; and that defendants being, dissatisfied with said judgment, prayed an appeal to the Supreme Court, which was granted. Thus far the judgment has every quality of a final judgment, and none whatever of an interlocutory judgment. The appeal is taken as of right to remove the entire record into this Court for affirmance, reversal or correction according to law' — and is not at all in the nature of a consultative appeal directed by the court below, at the re
The cause therefore is stili in the Court below for further action thereon ; and until that action be had, it cannot be removed, because of alleged error, into this Court. Suppose that on an inspection of the whole record, we should discover no error, what judgment could we render in respect to that part of the plaintiff’s costs which is yet the" subject of dispute in the Court below? Ought these to be included in or excluded from our judgment? Or should our judgment — whatever it might be in regard to this as yet undecided part of the controversy — be rendered subject to the correction of that Court? These are stated as some of the absurd consequences which would result from our regarding the judgment appealed from as a final judgment.
The cause is kept below professedly indeed for one purpose only — but nothing has been finally adjudged there. While the cause remains below, it is subject to the controul of that Court for all legitimate purposes. That Court may yet allow amendments — award a repleader — grant a new trial — and do any other matter in relation to the subject matter in controversy before it which any Court may lawfully do in regard to a cause before its final disposition.
,Per Curiam. Appeal dismissed.