Kopelman v. McClure

377 S.E.2d 796, 93 N.C. App. 340, 1989 N.C. App. LEXIS 163

Opinion

HEDRICK, Chief Judge.

Defendant did not object or except to the partial summary judgment in favor of plaintiffs with respect to liability entered by Judge Roda on 9 October 1987 nor did defendant cross-appeal from the judgment entered on 13 January 1988. Thus, no question is raised on this appeal regarding the propriety of partial summary judgment for plaintiffs as to liability entered on 9 October 1987.

Our Supreme Court in Bank v. Hanner, 268 N.C. 668, 670, 151 S.E. 2d 579, 580 (1966) stated:

The power of one judge of the superior court is equal to and coordinate with that of another, and a judge holding a succeeding term of court has no power to review a judgment rendered at a former term on the ground that the judgment is erroneous. No appeal lies from one superior court judge to another.

See, also, Johnson v. Johnson, 7 N.C. App. 310, 172 S.E. 2d 264 (1970).

In the present case, Judge Cash had no authority to overrule the partial summary judgment in favor of plaintiffs with respect to the issue of liability entered by Judge Roda on 9 October 1987. By submitting to the jury the first issue as to liability over plaintiffs’ objections, denying plaintiffs’ motion for a directed verdict as to the issue of liability, and by denying plaintiffs’ motion for a new trial as to the issue of liability, Judge Cash, in effect, overruled or reversed the order of District Judge Roda in the same case. The verdict of the jury finding no liability, and the judgment entered thereon must be vacated and the cause remanded to the district court for trial on the single issue as to what damages, if any, plaintiffs have suffered.

Vacated and remanded.

Judges Wells and Lewis concur.