Hinson v. . Adrian

91 N.C. 372

• Court: Supreme Court of North Carolina
• Decided: October 5, 1884
• Status: Published

Opinion

Smith, C. J.,

after stating the above. No direction was given-in respect to the money, its safe-keeping or investment pending the appeal, and this court is now moved, after notice given to parties interested, for an order making an intermediate disposition of the money, either in returning it to the purchaser on his giving adequate security for its return when demanded, dr in lending and converting it into an interest-bearing debt properly secured, and to be paid when the court shall require.

The motion proceeds upon the misconception of the legal effect of the appeal, and the condition and status of the case resulting therefrom. The fund is not thereby transferred to' the appellate court, or the authority to be exercised for its preservation withdrawn, but it remains in the custody and under the care of the superior court, as before, until the decision upon the appeal has been rendered. Meanwhile that court may make all necessary orders in reference to it, upon, application of parties interested in its safety and final disposition.

This is apparent from the statutory provisions in regard to appeals. The appeal, when perfected so as to secure the final judgment in the appellate court, arrests “all further proceedings in the court below upon the judgment appealed from or upon the matter embraced therein.” But the court is expressly authorized to “ proceed upon any other matter in-eluded in the action and not affected by the judgment appealed from.”

It is only the subject matter involved in the judgment that is thus placed beyond interference, and not those incidental matters appertaining to jurisdiction and often necessary in securing the full fruits of the judgment that may be rendered in the appellate court. The Code, § 588.

This construction is sustained by the provisions found in section 554, preceding, which authorizes the court, when the sureties to the undertaking on appeal become insolvent, to require a new undertaking from the appellant; to dis pose of. money deposited in place of an undertaking, during the pendency of the appeal; to order any money deposited with officers to be transferred to the court; and where perishable property is adjudged to be sold, and the appeal is from the judgment whereof this is part, to direct a sale and the proceeds to be deposited or invested to await the determination of the appeal.

These provisions clearly indicate the retention by the superior court of the powers necessary to the preservation of the funds in litigation, and subsidiary to the practical ends of the action. Nor are they in conflict with the series' of adjudged cases which declare, that the effect of an' appeal from a final judgment is to remove the cause into a higher court and make the affirmation of it therein a final and complete disposition of the controversy involved in the action. Isler v. Brown, 69 N. C., 125.

This cause is removed by the appeal to another jurisdiction, but the auxiliary agencies employed in the court below, in furtherance of its purposes, remain under the control of the judge thereof until the termination of the action, unless superseded by some proper order in this court. When a final determination is reached in either, these agencies will be required to do whatever is necessary to the full execution of the judgment and render it effectual.

As the appeal does not transfer the fund, which remains in charge of the court below, the judge possesses the power, and to him the application should be made, to make such orders in regard to it, as the interests of the parties may require for its preservation and forthcoming when required. The motion is denied.

Motion denied.