Opinion
(Filed 2 October, 1906.)
Judgments, Erroneous — How Corrected — Motion to Set Aside — Appeal — Docketing.
1. A motion made by a defendant at May Term, 1906, of the Superior Court to set aside a judgment rendered at November Term, 1905, for errors noted during the progress of the trial, was properly denied where it appears that the trial and judgment were in all respects regular, and the exceptions noted tend only to show that the judgment was erroneous.
2. An erroneous judgment can only be corrected by appeal, and this may be lost by failing to docket as required by law.
ACTION by A. F. Becton against C. F. Dunn, heard by Allen, J., at the May Term, 1906, of LENOIR.
This was a motion at May Term, 1906, to set aside a judgment entered in favor of the plaintiff and against the defendant at November Term, 1905. The motion was denied, and the defendant excepted and appealed.
Loftin Varser for the plaintiff.
No counsel for the defendant.
This cause was before the Court at Spring Term, 1905, on an appeal by defendant from a refusal of the Judge below to set aside a judgment by default rendered against defendant, and the decision, reported in 137 N.C. 559, directed that the judgment against defendant be set aside as having been entered contrary to the course and practice of the Court. This decision having been certified down, the judgment was set aside as therein ordered, and at November Term, 1905, the cause was tried before his Honor, W. R. Allen, Judge, and a jury, and on issues determinative of the controversy, verdict was rendered in favor of plaintiff and against defendant, and judgment was then and there entered in accordance with the verdict. Defendant (173) took an appeal from this judgment; and the case on appeal having been duly settled by the Judge who tried the case, same was docketed for hearing in this Court at Spring Term, 1906. The case and record, having been docketed by defendant too late, under Rule 17, the appeal was dismissed and judgment to that effect duly entered. Later in the term defendant applied to the Court to have his appeal reinstated, and the motion was denied. Defendant then appeared in the Court below, and after notice given, at May Term, 1906, made the present motion to set aside the judgment against him for errors noted during the progress of the trial at November Term, 1905. His motion was denied, and the present appeal was taken.
The trial verdict, and judgment entered in this cause in favor of plaintiff and against defendant at November Term, 1905, were in all respects regular and according to the course and practice of the Court, and we find no error which gives the defendant any just ground of complaint. And if it were otherwise — if the errors claimed by defendant in fact existed — he is not entitled to have them considered or passed upon in this proceeding. The trial and judgment were in all respects regular; defendant was present throughout the hearing, maintaining his defense; and the exceptions noted and insisted on by him, tending, as they do, only to show that the judgment was erroneous, such judgment could only be corrected by appeal; and this he has lost by failing to docket as required by law. May v. Lumber Co., 119 N.C. 96. There is no merit in this appeal, and the judgment below is
Affirmed.
(174)