Scroggs v. . Stevenson

12 S.E. 1031, 108 N.C. 260

Opinion

Clark, J.:

The only question presented by this appeal is, “ Did this Court, at February Term, 1888, sustain exceptions three and four of M. M. Alexander to the report of J. B. Connelly?”

An examination of the opinion in 100 N. C., on p. 359, shows that the Court (Smith, (’. J.) sustained those exceptions in clear and unmistakable language. The Court below should, therefore, have allowed defendant’s motion for a re-reference to correct the account in accordance with said opinion, the motion having been' made in apt time. His Honor was probably misled by the words, “ No error, affirmed,” at the end of the opinion, which was a mere inadvertence arising doubtless from the fact that there were many exceptions which were all held against the appellant, save those two, and the case in the main wras affirmed. This case differs somewhat from Cook v. Moore, 100 N. C., 294, and Summerlin v. Cowles, 107 N. C., 459, in which there was a similar inadvertence in a case where the judgment here was in its nature final, and a motion was properly made and allowed in this Court to correct it. In the present case the Court ruled, seriatim, on several exceptions, sustaining two, overruling the others, and sending the case back for further action. The Court below should have followed the decision of the Court, and not the formal conclusion, and no motion here to correct was absolutely necessary, there being no final judgment, and the costs of the former appeal being properly adjudged.

Error.