Kelly v. Piper

89 S.E.2d 764, 243 N.C. 54, 1955 N.C. LEXIS 704

• Court: Supreme Court of North Carolina
• Decided: November 2, 1955
• Status: Published

Opinion

Per Curiam.

The judgment or order from which this appeal is taken was entered by the judge in the exercise of his discretionary power. Ordinarily such appeal is premature, and will be dismissed.

Nevertheless, the Court takes notice of its decision entered cotempo-raneously herewith by which error is found in the judgment sought to be pleaded, and a new trial is ordered therein. Hence the alleged basis for the order from which appeal is undertaken is wiped out, and the amendment, figuratively, is left suspended in mid-air.

Therefore the Supreme Court in the exercise of its supervisory power over courts of the State, N. C. Const., Art. IV, Sec. 8, In re Stokley, 240 N.C. 658, 83 S.E. 2d 703, ex mero motu, orders the amendment stricken from the record.

The costs of this appeal will be divided between defendants appellant and defendant appellee.

Appeal dismissed.

Amendment stricken.