Labarbe v. . Ingle

161 S.E. 486 | N.C. | 1931

Motion for judgment on verdict rendered at prior term.

Civil action to recover on two promissory notes, tried at the May Term, 1930, Buncombe Superior Court, which resulted in a verdict for the plaintiffs. Through inadvertence, omission or error, no formal judgment was signed by the judge, or if signed, such judgment has been lost or destroyed.

At the June Term, 1931, after due notice to the defendant, the plaintiffs moved for judgment nunc pro tunc on the verdict. The motion was allowed, and from this ruling the defendant appeals. Affirmed on authority of McDonald v. Howe, 178 N.C. 257,100 S.E. 427, Pfeifer v. Drug Co., 171 N.C. 214, 88 S.E. 343, Knowlesv. Savage, 140 N.C. 372, 52 S.E. 930, Thompson v. Peebles, 85 N.C. 418.

Speaking to a similar situation in Ferrell v. Hales, 119 N.C. 199,25 S.E. 821, Clark, J., observed: "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 protunc, 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 the term at which it was actually entered." There is no question here as to the rights of third persons.

Affirmed.