Opinion
December Term, 1856.
Where a case has been transmitted to this Court irregularly and improperly, and decided under the impression that it was here by the consent of parties, on its appearing to the Court, at the same term, that it was not so brought up by consent, the Court will order the judgment to be vacated and the cause stricken from the docket.
THIS was a motion to vacate a judgment rendered at this term of the Court, and to strike the case from the docket.
The cause, which was an ACTION of EJECTMENT, was tried below, before his Honor, Judge CALDWELL, at the Spring Term, 1856, of Stanly Superior Court, and resulted in a verdict and judgment for the plaintiff, from which the defendant prayed an appeal to the Supreme Court, and filed an appeal-bond in the office of the clerk of that Court; but no bill of exceptions was prepared and tendered to the Judge trying the cause, for his signature, and no statement of the case made out by him in lieu of such exceptions.
At the next term of that Court, his Honor, Judge DICK, presiding, came one Daniel Freeman, and made an affidavit, stating that the defendant held under him, and that he was the party beneficially interested in the land; stating, also, the facts of the trial, verdict, appeal and filing the bond, at Spring Term, 1856, and that the Judge had not filed a statement of the case as affiant had expected; that he had applied to the defendant's counsel to make out a statement as nearly as he could, of the case tried, which he had done, and which he believed to be substantially correct, and which he appended to the affidavit, also, setting forth some of the title papers under which the lessors of the plaintiff claimed title to the premises, to wit, a grant to Arthur Dobbs, and a copy of a deed from Stephen Kirk to Thomas J. Shinn. Upon consideration of which affidavit, his Honor ordered this record to be made in the case: "In this case, the affidavit being offered in open Court by the counsel for the defendant, and the counsel for the plaintiff being in Court, and appended to the said affidavit was a statement of the facts and trial of this cause, at March Term, 1856, in this Court, and thereto a copy of a deed from Stephen Kirk to Thomas J. Shinn; and it being made to appear to the Court that, at March Term, 1856, after the trial and verdict and judgment in this cause, an appeal was prayed by the defendant to the Supreme Court, and granted, and an appeal bond, with adequate surety, filed, and that no case had been made out and filed for the Supreme Court, and no transcript of the record was sent up to the Supreme Court, for the want of such case having been made out and filed, on motion, it is ordered by the Court, that the statement of facts of the case, and trial of the said action of ejectment, together with a copy of the grant to Arthur Dobbs, and a copy of the deed from Stephen Kirk to Thomas J. Shinn, be entered of record, nunc pro tunc, as of March Term, 1856."
At an early day of this term, the cause was taken up and argued for the defendant, no counsel appearing for the plaintiff in this Court, and decided upon the statement of facts sent up, in favor of the defendant.
Subsequently in the term, a motion was made to vacate the judgment aforesaid, and that the cause should be stricken from the docket, and affidavits of the counsel, who appealed for the plaintiff in the Court below, were read, stating that they did not give their consent to the order made for bringing up the cause nunc pro tunc, nor to the transmission of the record from the Fall Term, instead of the Spring Term, 1856.
Boyden, for plaintiff.
Bryan, for defendant.
When this case was decided and the opinion filed, the Court acted under the impression that the making up and filing "the case" nunc pro tunc, and the transmission of the record to this Court from Fall Term, 1856, instead of from the Spring Term, 1856, when the trial took place and the appeal was taken, was all done by consent, for the purpose of avoiding the difficulty in which the appellant was placed, by reason of the fact that the Judge before whom the case was tried, and under whose direction the statement of the case ought to have been made out, and by whom the bill of exceptions ought to have been signed and sealed, had not made out a statement of the case. Upon an affidavit now filed that the case was not transmitted to this Court from Fall Term, 1856, by consent, a motion was made by the counsel of the appellee to vacate the judgment which had been rendered at this Term, and to strike the case from the docket of this Court. The motion is allowed.
Thereupon, a motion was made by the counsel of the appellant for a certiorari, which motion is also allowed.
We do not think it proper now to express an opinion upon the question, whether any Judge except the Judge who presides at the trial, has power to sign and seal a bill of exceptions, or cause to be made up a statement of the case, which is allowed to answer the purpose of the bill of exceptions; or whether the "presiding Judge" has power to do so, except at the Term when the trial takes place.
PER CURIAM. Judgment of this term vacated.