BRANCH, Justice.
The parties to this appeal do not present the question of whether the Superior Court had jurisdiction to enter the order of 1 July 1970.
For many years it has been recognized that as a general rule an appeal takes the case out of the jurisdiction of the trial Court. In
Machine Co. v. Dixon,
260 N.C. 732, 133 S.E. 2d 659, it was stated:
“As a general rule, an appeal takes a case out of the jurisdiction of the trial court. Thereafter, pending the appeal, the judge is
functus officio.
‘. . . (A) motion in the cause can only be entertained by the court where the cause is.’ Exceptions to the general rule are: (1) notwithstanding notice of appeal a cause remains
in fieri
during the term in which the judgment was rendered, (2) the trial judge, after notice and on proper showing, may adjudge the appeal has been abandoned, (3) the settlement of the case on appeal.
“ . . . The appeal removed the case to the Superior Court for all purposes, except the certification of a correct record. ...”
Accord:
Pelaez v. Carland,
268 N.C. 192, 150 S.E. 2d 201;
Hoke v. Greyhound Corp.,
227 N.C. 374, 42 S.E. 2d 407;
Bank v. Twitty,
13 N.C. 386.
Plaintiff made his motion to set aside the judgment pursuant to Rules 59 and 60 of the New Rules of Civil Procedure. We must therefore determine the effect of Rules 59 and 60 upon the above stated general rule as applied to the facts of this case. This presents a problem of first impression in this jurisdiction.
Rule 59 provides:
(a) Grounds. — A néw trial may be granted to all or any of the parties and on all or part of the issues for any of the following causes or grounds: . . . .
(4) Newly discovered evidence material for the party making the motion which he could not, with reasonable diligence, have discovered and produced at the trial;
(b) Time for motion. — A motion for a new trial shall be served not later than 10 days after entry of the judgment.
Clearly Rule 59 does not apply to the facts of this case since the motion for new trial was not made within the period of time specified by that rule.
Thus, if plaintiff is entitled to any relief, it must be found in the provisions of Rule 60.
Rule 60(b) in part provides:
(b) Mistakes; inadvertence; excusable neglect; newly discovered evidence; fraud, etc. — On motion and upon such terms as are just the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons:
(2) Newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59 (b) ;
(6) ... The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order, or proceeding was entered or taken. A motion under this section does not affect the finality of a judgment or suspend its operation. . . .
Pertinent parts of Federal Rule 60(b) provide:
On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons: ....
(2) Newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59 (b).
. . . The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order or proceeding was entered or taken.
A motion under this subdivision (b) does not affect the finality of a judgment or suspend its operation.
The nearly identical provisions of our Rule 60(b) and Federal Rule 60 (b) point to the Federal decisions for interpretation and enlightenment.
In the case of
Switzer v. Marzall,
95 F. Supp. 721 (1951) the defendant filed a motion for a new trial and later gave notice of appeal. The appellate court, in holding that the defendant removed the case from the jurisdiction of the trial court when he appealed, stated:
The basic rule is that two courts cannot have jurisdiction of the same case at the same time, and that on perfecting of appeal the lower court is ousted of its jurisdiction.
Draper v. Davis,
102 U.S. 370, 26 L. Ed. 121;
Keyser v. Farr,
105 U.S. 265, 26 L. Ed. 1025;
Goldsmith v. Valentine,
35 App. D.C. 299;
Lasier v. Lasier,
47 App. D.C. 80.
The question therefore narrows down to whether the principle has been modified by the 1948 amendments to the Federal Rules, particularly Rule 60(b).
Rule 60(b), as amended, provides that the court may relieve a party from a final judgment on the ground (among others) of newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b), that the motion shall be made not more than one year after the judgment was entered, and that such motion shall not affect the finality of a judgment or suspend its operation.
In
Daniels v. Goldberg,
D.C. 8 F.R.D. 580, 581, it is stated: “The amendments to the Rules specifically give to the district court power to act in certain instances after an appeal has been filed, Rules 60(a) and 73(a),
but none of these confer on a district court the power to vacate a judgment after an appeal has been filed.”
(Emphasis ours.)
This question was considered and summarily treated in the case of
Norman v. Young,
422 F. 2d 470 (1970). There the Court stated:
“ . . . The record reflects that on April 11, 1969, all parties stipulated at defendants’ request that the supplemental proceedings be continued over and set for hearing at the Court’s convenience. April 18 was the date set and on that day, before arguing his 60(b) motion, defendants’ lawyer filed a notice of appeal, taking the case out of the trial court’s jurisdiction. There was no fault here with the trial judge.”
In 7 J. Moore, Federal Practice, Par. 60:30(2), (2 ed., 1970), we find the following:
But the general rule is that when an appeal is taken from the district court the latter court is divested of jurisdiction, except to take action in aid of the appeal, until the case is remanded to it by the appellate court.
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BRANCH, Justice.
The parties to this appeal do not present the question of whether the Superior Court had jurisdiction to enter the order of 1 July 1970.
For many years it has been recognized that as a general rule an appeal takes the case out of the jurisdiction of the trial Court. In
Machine Co. v. Dixon,
260 N.C. 732, 133 S.E. 2d 659, it was stated:
“As a general rule, an appeal takes a case out of the jurisdiction of the trial court. Thereafter, pending the appeal, the judge is
functus officio.
‘. . . (A) motion in the cause can only be entertained by the court where the cause is.’ Exceptions to the general rule are: (1) notwithstanding notice of appeal a cause remains
in fieri
during the term in which the judgment was rendered, (2) the trial judge, after notice and on proper showing, may adjudge the appeal has been abandoned, (3) the settlement of the case on appeal.
“ . . . The appeal removed the case to the Superior Court for all purposes, except the certification of a correct record. ...”
Accord:
Pelaez v. Carland,
268 N.C. 192, 150 S.E. 2d 201;
Hoke v. Greyhound Corp.,
227 N.C. 374, 42 S.E. 2d 407;
Bank v. Twitty,
13 N.C. 386.
Plaintiff made his motion to set aside the judgment pursuant to Rules 59 and 60 of the New Rules of Civil Procedure. We must therefore determine the effect of Rules 59 and 60 upon the above stated general rule as applied to the facts of this case. This presents a problem of first impression in this jurisdiction.
Rule 59 provides:
(a) Grounds. — A néw trial may be granted to all or any of the parties and on all or part of the issues for any of the following causes or grounds: . . . .
(4) Newly discovered evidence material for the party making the motion which he could not, with reasonable diligence, have discovered and produced at the trial;
(b) Time for motion. — A motion for a new trial shall be served not later than 10 days after entry of the judgment.
Clearly Rule 59 does not apply to the facts of this case since the motion for new trial was not made within the period of time specified by that rule.
Thus, if plaintiff is entitled to any relief, it must be found in the provisions of Rule 60.
Rule 60(b) in part provides:
(b) Mistakes; inadvertence; excusable neglect; newly discovered evidence; fraud, etc. — On motion and upon such terms as are just the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons:
(2) Newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59 (b) ;
(6) ... The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order, or proceeding was entered or taken. A motion under this section does not affect the finality of a judgment or suspend its operation. . . .
Pertinent parts of Federal Rule 60(b) provide:
On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons: ....
(2) Newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59 (b).
. . . The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order or proceeding was entered or taken.
A motion under this subdivision (b) does not affect the finality of a judgment or suspend its operation.
The nearly identical provisions of our Rule 60(b) and Federal Rule 60 (b) point to the Federal decisions for interpretation and enlightenment.
In the case of
Switzer v. Marzall,
95 F. Supp. 721 (1951) the defendant filed a motion for a new trial and later gave notice of appeal. The appellate court, in holding that the defendant removed the case from the jurisdiction of the trial court when he appealed, stated:
The basic rule is that two courts cannot have jurisdiction of the same case at the same time, and that on perfecting of appeal the lower court is ousted of its jurisdiction.
Draper v. Davis,
102 U.S. 370, 26 L. Ed. 121;
Keyser v. Farr,
105 U.S. 265, 26 L. Ed. 1025;
Goldsmith v. Valentine,
35 App. D.C. 299;
Lasier v. Lasier,
47 App. D.C. 80.
The question therefore narrows down to whether the principle has been modified by the 1948 amendments to the Federal Rules, particularly Rule 60(b).
Rule 60(b), as amended, provides that the court may relieve a party from a final judgment on the ground (among others) of newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b), that the motion shall be made not more than one year after the judgment was entered, and that such motion shall not affect the finality of a judgment or suspend its operation.
In
Daniels v. Goldberg,
D.C. 8 F.R.D. 580, 581, it is stated: “The amendments to the Rules specifically give to the district court power to act in certain instances after an appeal has been filed, Rules 60(a) and 73(a),
but none of these confer on a district court the power to vacate a judgment after an appeal has been filed.”
(Emphasis ours.)
This question was considered and summarily treated in the case of
Norman v. Young,
422 F. 2d 470 (1970). There the Court stated:
“ . . . The record reflects that on April 11, 1969, all parties stipulated at defendants’ request that the supplemental proceedings be continued over and set for hearing at the Court’s convenience. April 18 was the date set and on that day, before arguing his 60(b) motion, defendants’ lawyer filed a notice of appeal, taking the case out of the trial court’s jurisdiction. There was no fault here with the trial judge.”
In 7 J. Moore, Federal Practice, Par. 60:30(2), (2 ed., 1970), we find the following:
But the general rule is that when an appeal is taken from the district court the latter court is divested of jurisdiction, except to take action in aid of the appeal, until the case is remanded to it by the appellate court. Hence during the pendency of an appeal it is generally held that the district court is without power to grant relief under Rule 59; or to vacate, alter or amend the judgment under Rule 60 (b), whether the 60 (b) motion is made prior to or after the appeal is taken, except with permission of the appellate court.
Moore also points out that “(a) motion for relief under Rule 60(b) does not affect the finality of a judgment and hence does not toll the time for appeal from the final judgment. Cor-rectively, an appeal from the final judgment does not enlarge the time within which to move for relief under 60 (b).”
Id.
Par. 60:30(1).
The general rule set forth in
Machine Company v. Dixon, supra,
and
Pelaez v. Carland, supra,
is not changed by Rules 59 and 60 of the New Rules of Civil Procedure. Here, when the appeal was taken the trial court was divested of jurisdiction except to aid in certifying a correct record. Plaintiffs failed to move for a new trial in the appellate division within the time allowed by Rule 60 (b).
The order of the trial court vacating the judgment of 28 April 1970 and granting a new trial on ground of newly discovered evidence is of no effect since it was entered after the trial court was divested of jurisdiction. The order is vacated.
Order vacated.