State v. Grundler , 249 N.C. 399 ( 1959 )

106 S.E.2d 488 (1959) 249 N.C. 399

STATE
v.
Robert J. GRUNDLER.

No. 151.

Supreme Court of North Carolina.

January 14, 1959.

Malcolm B. Seawell, Atty. Gen., T. W. Bruton, Asst. Atty. Gen., for the State.

George Rountree, Jr., Wilmington, Herbert E. Rosenberg, New York City, Edward Norwalk, New York City, on brief, for defendant appellant.

WINBORNE, Chief Justice.

This is the determinative question on this appeal: Did the Judge below err in dismissing application of defendant, appellant, on the ground that he had no jurisdiction or authority under G.S. § 1-220 to hear the motion? The Court is of opinion and holds that the ruling is erroneous.

In this State it is provided by statute G.S. § 15-180 that "in all cases of conviction in the superior court for any criminal offense, the defendant shall have the right to appeal * * *; and the appeal shall be perfected and the case for the Supreme Court settled, as provided in civil action."

And the General Assembly declares that "the judge shall, upon such terms as may be just, at any time within one year after notice thereof, relieve a party from a judgment, order, verdict or other proceeding against him through his mistake, inadvertence, surprise, or excusable neglect * * *."

Considering these statutes in the light of decisions of this Court it is held that the judge of Superior Court to whom the application of defendant was addressed had the power and duty to hear the matter.

And it is uniformly held by decisions of this Court that where it appears that the judge below has ruled upon matter before him upon a misapprehension of the law, the cause will be remanded to the Superior Court for further hearing in the true legal light. See McGill v. Town of Lumberton, 215 N.C. 752, 3 S.E.2d 324, and cases cited including State v. Fuller, 114 N.C. 885, 886, 19 S.E. 797; State v. Casey, 201 N.C. 620, 161 S.E. 81; Tickle v. Hobgood, 212 N.C. 762, 194 S.E. 461; Bullock v. Williams, 213 N.C. 320, 195 S.E. 791; Farris v. First Citizens Bank & Trust Co., 215 N.C. 466, 2 S.E.2d 363. See also numerous cases listed in Shepard's North Carolina Citations (215 N.C. 752, headnote 3, 3 S.E.2d 324).

For error pointed out this case is remanded for such further hearing.

Error and remanded.