Thе pertinent facts are fully set forth in the opinion on the former appeal in this cause.
S. v. Cox,
“The Court, upon consideration of the defendant’s appeal from the judgment of the Rowan County court entered July 29, 1938, is of the opinion that the facts charged in the warrant and admitted by the plea of nolo contendere, suрport and warrant in law said judgment of July 29, 1938, entered by the Rowan County court.
“It is, therefore, ordered, adjudged and decreed the judgment of the Rowan County court dated July 29, 1938, be, and is, affirmed, and that the defendant’s apрeal therefrom be, and is, dismissed.” By his appeal the defendant challenges the correctness of this judgment.
When the defendant appealed from the original judgment of the county court and the appeal was docketed in the Superior Court the
*426
Rowan County court was without jurisdiction to proceеd further therein. The appeal vested jurisdiction in the Superior Court. Therefore, the judgment entered by thе county court, 2 September, 1938, attempting to modify the original judgment was void.
S. v. Goff,
The appeal having beеn docketed in the Superior Court, the judge presiding, at term, had authority, upon satisfactory cause shown, and by consent, to remand the case to Rowan County court for clarifying judgment or other proceedings. Thus, the order entered at the September Term, 1938, remanding the case to the county court was а valid exercise of jurisdiction by the judge of the Superior Court. The order had the effect of reinstating the case on the county court docket and revested that court with jurisdiction of the cause. The judgment thereafter entered by the judge thereof, on 17 November, 1938, upon a plea of nolo con-tendere by the defendant, was valid. From this judgment the defendant did not appeal.
The provision in the order of remand entered at thе September Term, 1938, granting the State the right to appeal was void. The right of the State to appеal is controlled by statute. C. S., 4649.
S. v. Nichols,
As the defendant did not appeal from the cоunty court judgment entered 17 November, 1938, the cause never again properly reached the Supеrior Court. The attempted appeal by the State was ineffective to restore its jurisdiction. This cоnclusion is unaffected by the judgment entered in the Superior Court at the November Term, 1938, in which the judge presiding attempted to revoke and strike from the record the order of remand. The judge was without power to revoke the order at a subsequent term without the consent of the defendant.
The correctness оf the provision in the judgment entered at the May Term, u1939> 1° the effect that the appeal from the county court on defendant’s plea of
nolo contendere
placed the cause on the Superior Court docket for review and determination of the question as to whether the facts charged and admitted by the plea of
nolo contendere
constituted an offense under the Constitution and laws of North Carolina and not for trial
de novo
is not presented for determination on this record. However, it might be well to note that this conclusion is contrary to the former decisions of this court. See
S. v. McKnight,
The judgment entered at the May Term, 1939, of the Superior Court was void for the want of jurisdiction, as the attempted appeal by the *427 State did not reinstate tbe canse in the Suрerior Court. The Superior Court acquired no jurisdictional control over the cause by virtue of that appeal.
The defendant’s motion made at the May Term, 1939, to dismiss the appeal of the State аnd remand the cause to the county court to the end that he might comply with the last and final judgment of that court should have been allowed.
This criminal action is now properly in the Rowan County court and the judge of that court may enforce the judgment there entered.
Reversed.