Turrentine v. . Richmond Danville Railroad

92 N.C. 642

• Court: Supreme Court of North Carolina
• Decided: February 5, 1885
• Status: Published

Opinion

Smith, C. J.

(after stating the facts). There is no error in the ruling of the court. The proceedings had during the sitting of the court are in fieri, and a judgment rendered is subject to be set aside, modified and changed, should the judge upon a reconsideration deem it erroneous or unsatisfactory in any particular. It is not final and conclusive until the term expires and his authority ceases. This is equally true of an appeal, tvhich is subject to the same conditions, and may be defeated by the action of the court in vacating the judgment or in so modifying it as to remove the objectionable part.

As until the term expires there is no final determination of the cause, the appeal in a legal sense is then taken and becomes absolute. Clifton v. Wynne, 81 N. C., 160; Moore v. Hinnant, 90 N. C., 163, and numerous cases referred to in the opinion.

It is manifest then that the judgment is not rendered, that is, not made final and complete until the term closes, and so the appeal is only taken when the judgment becomes absolute and fixed. Otherwise in a protracted term, the cause might be taken out of the jurisdiction and placed beyond the control of the judge. Yet the authorities are clear that his jurisdiction retains the cause in court during the entire term, and subject to his authority.

- The copy was served within the five days, since in counting time the first day is excluded, as provided in section 596 of The Code, and decided in Barcroft v. Roberts, ante, 249. The entry of the appeal on the 12th was but an inchoate, not a consummated act, awaiting the possible intervention of the judge, but to be proceeded with, when his control ■ over the case ceases, within the time limited for the perfection of the appeal. There is no error, and the judgment is affirmed.

No error. Affirmed.