Isler v. . Brown .

69 N.C. 125

• Court: Supreme Court of North Carolina
• Decided: June 5, 1873
• Status: Published

Opinion

Reade, J.

At a former term of the Court below there had been judgment against the plaintiff, and he appealed to this Court, and at- Term of this Court there was a new trial granted ; and at Spring Term, 1872, of the Court below there ivas judgment for plaintiff, and the defendant appealed; and at the June Term of this Court the judgment was affimed, and judgment here for plaintiff; 67 N. C. Rep. 175.

At Spring Term, 1873, of the Court below, the defendant moved to vacate the judgment rendered against him at Spring Term, 1872, upon the ground of mistake under C. C. P. sec. 133, and his Honor vacated the judgment and granted a new trial, from which the plaintiff appealed to this Court.

In this there was error. There ivas no judgment below which his Honor could vacate. The appeal to this Court vacated the judgment below, and then there was judgment in this Court at June Term, 1872, in favor of the plaintiff.

There being no judgment below to vacate, and his Honor having no power to vacate the'judgment of this Court, it follows that the order below vacating the judgment and granting a new trial was erroneous.

This will be certified.

Per Curiam. Order reversed.