Jim Walter Homes, Inc. v. Peartree , 24 N.C. App. 579 ( 1975 )

211 S.E.2d 457 (1975) 24 N.C. App. 579

JIM WALTER HOMES, INC.
v.
Willie Herman PEARTREE.

No. 742DC929.

Court of Appeals of North Carolina.

February 5, 1975. Certiorari Denied April 2, 1975.

W. Faison Barnes, Charlotte, for plaintiff appellant.

John H. Harmon, New Bern, for defendant appellee.

Certiorari Denied by Supreme Court April 2, 1975.

BRITT, Judge.

Plaintiff's sole assignment of error is to the entry of the order granting a new trial. Plaintiff contends that the trial court did not have jurisdiction to enter the order since the case had been appealed to the Court of Appeals. We agree.

In Wiggins v. Bunch, 280 N.C. 106, 108, 184 S.E.2d 879, 880 (1971), we find:

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 American Floor 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 record in this case discloses that defendant gave notice of appeal on 16 May 1974 and on 23 May 1974 posted bond staying execution of the judgment. The appeal removed the case from the jurisdiction of the trial court unless one of the three exceptions stated above was applicable. It is clear that none of the exceptions applied. The cause was not in fieri on 25 July 1974, the appeal had not been adjudged abandoned, and the order appealed from was not a settlement of the case on appeal.

For the reasons stated, the order awarding a new trial is

Vacated.

BROCK, C. J., and CLARK, J., concur.