Opinion
(September Term, 1896.)
Practice — Entry of Verdict by Clerk — Entry of Judgment — Judgment Nunc Pro Tunc.
1. A clerk of the court may by consent receive a verdict, even if the judge is not in the court-room, provided it is done before the expiration of the term, and he may thereupon enter a valid judgment under Code, section 412 (1), or make a memorandum thereof and afterwards write it out in full.
2. But where the clerk, having by consent received a verdict at 11:40 o'clock Saturday night of the last week of the term, failed, in the absence of the judge and for lack of other direction by him, to enter judgment or memorandum thereof in accordance with the verdict that night, but entered judgment on the following Monday morning, and after the expiration of the term: Held, that the judgment so attempted to be entered was a nullity.
3. In such case, the judgment being a nullity, an appeal therefrom could not operate as a vehicle to remove the record so as to subtract it from the operation of legal orders of the trial judge at the next term.
4. Where a verdict was, by consent of the parties, but in the absence of the judge from the court-room, received by the clerk on the last day of court, but no judgment was entered, it was proper for the judge at the next term, finding the record complete up to and including the verdict, to render judgment nunc pro tunc, and it was not necessary to the validity of the judgment that notice of its entry should be given, since the cause was pending on the docket.
5. A judgment rendered nunc pro tunc, at a term of court succeeding that at which the record was complete up to and including verdict, is as operative as between the parties as if it had been rendered at the previous term, but as to other parties, it is effective, as a lien, only from the first day of the term at which it was actually entered.
6. Where the defects in tobacco, sold with representations as to its grade and quality, are latent and peculiarly within the knowledge of the seller, the fact that the buyer has an opportunity to inspect it, and does not do so fully, is no waiver of the warranty.
(200) ACTION, tried at January Term, 1896, of DURHAM, being for damages for breach of warranty in the sale of a lot of tobacco by the defendant to the plaintiffs.
At the close of his Honor's charge at 6:30 p.m. Saturday (the last day of the term), it was agreed by counsel for both parties that (209) the Clerk might take the verdict of the jury. His Honor thereupon adjourned court until 8 p.m., when he returned to the bench and transacted business until 10:30 p.m., when he left the bench and announced that the term would not be formally adjourned, but he would let it expire by limitation of law at 12 o'clock p.m. His Honor did not return to the bench again that night, or make any other announcement, nor continue the term.
At 11:40 p.m. the jury announced their verdict, which was taken by the clerk, there being no other order by the Judge to the contrary. The Judge not having left town did not himself in person make any judgment. The clerk made no entry or memorandum of judgment on Saturday night, but entries of the verdict and judgment were made early Monday morning, and on the same morning defendant's counsel entered a protest to the entry of judgment by the clerk, and in due time entered an appeal.
At March Term, 1896, of the court, his Honor, Judge Coble, (210) on motion of plaintiffs, caused the following judgment to be entered:
"In this cause, it appearing unto the Court that at January Term, 1896, of Durham Superior Court, the jury having returned a verdict for the plaintiffs and assessing the damages at $1,900; and it further appearing to the Court that no judgment was presented to the judge because of the late hour when the verdict was returned, said verdict being returned at 11:40 o'clock on Saturday night of the last week of said term, and by consent the Clerk received the verdict in the absence of his Honor, A. L. Coble, Judge, and counsel on both sides; it is now, on motion of counsel for plaintiffs, ordered and adjudged that the plaintiffs recover of the defendant the sum of $1,900, with interest at 6 per cent per annum from 13 January, 1896, and the cost of this action, to be taxed by the clerk; and this judgment is signed and will take effect as of the January Term, 1896, of Durham Superior Court; but this judgment is not intended to be and is not cumulative with the judgment entered in this case or attempted to be entered by W. J. Christian, clerk, under section ______ of The Code. The said clerk will make a minute of this judgment upon the said former judgment or attempted judgment of said clerk. "ALBERT L. COBLE, "Judge Presiding."
To this judgment the defendant excepted and appealed. (211)
Winston Fuller and Boone Bryant for plaintiff.
Manning Foushee, H.G. Connor and Shepherd Busbee for defendant (appellant).
There are two appeals in this case, one from the judgment entered by the Clerk upon the verdict, and the other from the judgment rendered by the judge at the next term, nunc pro tunc, but for convenience both can be disposed of together.
The verdict was rendered at 11:40 p. m., Saturday of the second week. This case differs from Delafield v. Construction Co., 115 N.C. 21, in that the judge had not left the court, and though he was not in the court room in person when the verdict was rendered, it was received by the clerk, by consent of parties, and was therefore a valid judgment in all respects. The term was not extended by the judge, as authorized by chapter 226, Laws 1893, but the verdict was within the limits of the term if the judge were present, and he was present through the clerk, who could, by consent of parties, represent him for the purpose of receiving the verdict. S. v. Austin, 108 N.C. 780. If the clerk thereupon had entered up the judgment, it would unquestionably have (212) been valid, for The Code, sec. 412 (1) provides that, upon receiving the verdict, "if a different direction be not given by the court, the clerk must enter judgment in conformity with the verdict." Even if the clerk had merely entered a memorandum, as "judgt.", it would have been sufficient, according to the authorities, and the judgment in full could have been drawn out thereafter. Davis v. Shaver, 61 N.C. 18; Jacobs v. Burgwyn, 63 N.C. 193. But neither judgment nor memorandum of judgment was entered, there being no action whatever taken beyond receiving the verdict. It was, therefore, clearly incompetent for the clerk to attempt to enter judgment on the Monday following. It must be declared a nullity, and in the appeal from the same the appellee will pay the costs in this Court.
At the next term the record presented the case of a valid verdict, but with no judgment entered thereon. 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 pro tunc, 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 (213) the term at which it was actually entered. In the present case the judge at the second term who rendered the judgment was the same who had presided at the trial term; but had there been different judges at the two terms it is the latter who in case of disagreement should settle the case. The matters excepted to, up to and including the verdict, should be settled by the first judge, and his statement sent up in the case made by the last judge, as is the case with exceptions as to matters not immediately appealable for lack of final judgment; as in Jones v. Call, 89 N.C. 188; S. c., 96 N.C. 337; Blackwell v. McCaine, 105 N.C. 460. It is also excepted to this last judgment that the case was in the Supreme Court by appeal from the alleged judgment by the clerk; but, as we have seen, that attempted judgment was a nullity, and of no more effect than would have been the same entry on the record by a stranger. The judge properly treated it as a nullity, and the appeal from such unauthorized entry on the record could not have the effect to take the case into this Court so as to subtract it from legal orders of the judge presiding in the court below. No notice of motion was necessary at term time in a cause pending on the docket. Coor v. Smith, 107 N.C. 430; Sparrow v. Davidson, 77 N.C. 35; University v. Lassiter, 83 N.C. 38, and other cases cited in Clark's Code (2 Ed.), p. 652.
A careful examination of the exceptions to instructions given, and for refusal to give instructions prayed, shows no error. Without taking them up in detail, the court below is sustained by the principles laid down in Lewis v. Rountree, 78 N.C. 323; Love v. Miller, 104 N.C. 582; Blacknall v. Rowland, 108 N.C. 554; S. c., 116 N.C. 389. The tobacco was sold by sample and examination of outside bulks, (214) and upon representations made by the defendant. The defects were latent and as to matters peculiarly within the knowledge of the defendant.
NO ERROR.
Cited: Taylor v. Ervin, post, 277, 278; Knowles v. Savage, 140 N.C. 374; Barger v. Alley, 167 N.C. 363; Brown v. Harding, 170 N.C. 261; S. c., 171 N.C. 687; Pfeifer v. Drug Co., ib., 216; Hardware Co. v. Holt, 173 N.C. 311.