Opinion
(June Term, 1830.)
1. After an appeal to this Court the Court below can take no further order in the cause unless a new trial is awarded here.
2. If judgment be arrested in this Court the Court below can only collect the costs incurred there.
3. Upon an arrest of judgment, neither party recovers costs.
4. Where an error was committed in engrossing the judgment of this Court it must be corrected by the minutes.
After the arrest of judgment in this case ( 12 N.C. 153), the clerk of this Court below that the judgment of this Court was, "that the judgment of the Superior Court of Rutherford be reversed, and that the judgment be arrested, and judgment against the relators for the costs of this Court and the Court below."
Badger, for the relators.
Gaston, contra.
FROM RUTHERFORD.
Upon this certificate the cause stood for several terms upon the docket of Rutherford Court, and several rules were made in it. (387) (Ante, 176.) On the last circuit, on the motion of the defendants, his Honor, Judge DANIEL, thinking the cause was finally disposed of by this Court, directed judgment to be entered according to the certificate. Upon which the relators appealed.
In this case the judgment of the Court below must be reversed; because after the appeal to this Court in 1826 the Superior Court of Rutherford could take no further order in the cause, unless a new trial was directed by the Supreme Court. By the appeal the whole case is removed, and never gets back but for the purpose of a new trial. Here the judgment was arrested, and consequently the case came to an end here. The certificate sent down by the clerk of this Court is rendered necessary by the act of 1825, that the costs below may be collected. And in such case as this that is the sole purpose of it.
The clerk, however, made a mistake both in the certificate sent to Rutherford and in drawing out the judgment here. When judgment is arrested, neither party recovers costs, but each pays his own. The original entry on the minutes is right. The error was committed in engrossing it. It must now be corrected by the minutes, and certified again to the clerk of Rutherford Superior Court, which is ordered accordingly.
PER CURIAM. Reversed.
Cited: Pasour v. Lineberger, 90 N.C. 161.
See Bledsoe v. Nixon, 69 N.C. 81; McRae v. Com'rs, 74 N.C. 415.
(388)