
    HOWE v. HALL.
    (Filed April 23, 1901.)
    
      APPEAL — Exceptions•—Time—Practice.
    Where a verdict non obstante veredicto is reversed, the appellee can not appeal from a judgment entered on the remand and bring up exceptions taken at the original trial.
    ActioN by S. B. Howe against J. G. Hall and David Hemphill, receivers of the Chester and Lenoir N. G. R. R. Oo., and G. W. E. Harper, receiver of the Chester and Lenoir N. G. R. R. Co., and the Carolina and Northwestern Railway Company, heard by Judge W. S. O’B. Robinson, at February Term, 1901, of GastoN County Superior Court. From a judgment for the plaintiff, the defendants appealed.
    
      J ones & Tillett, for the plaintiff.
    
      J. II. Marion and O. F. Mason, for the defendants.
   MONTGOMERY, J.

This case was tried at the August Special Term, 1900, of the Superior Court of Gaston County, before Starbuck, J., and a jury. After the plaintiff had introduced his evidence, each of the defendants made a motion for judgment dismissing the complaint as of nonsuit upon the ground that the evidence had disclosed the fact that neither of the defendants was the corporation, or the representative of the corporation, which had inflicted the injury complained of by the plaintiff, and that the injury had in fact been inflicted by a corporation which had not been sued. The motion was refused, but was renewed when all the evidence on both sides had been introduced. His Honor, desiring further time for the purpose of examining certain records con■stituting a part of the evidence, before deciding the motion, the counsel agreed at his Honor’s suggestion that the issues of fact be submitted to the jury and answered by them without prejudice, and that the question of law as to the liability of any or all of the defendants, raised by the motion, should be reserved for the subsequent determination of the Court out of term time.

The issues were therefore submitted to the jury, and they found that the “person or persons operating the Chester and Lenoir Railroad Company on March 31, 1894,” had negligently injured the plaintiff to the extent of $500.

On the 18th day of September thereafter, Judge Starbuclc reudered the judgment set out in the record, in which it was adjudged that the defendants were not liable to the plaintiff for the damages assessed by the jury; that the plaintiff take nothing by this action, and that the defendants go without •day. The plaintiff appealed from this judgment, and this Court, at its September Term, 1900, reversed the judgment of the Superior Court, and held that the plaintiff was entitled to recover of the defendant, The Carolina and Northwestern Railroad Company, the amount of damages sustained by the plaintiff as fixed by the jury.

The opinion of this Court was duly certified to the Superior Court, and at the February Term, 1901, thereof, Judge Robinson presiding, a judgment was rendered in accordance with the opinion of this Court.

The present condition of this case, as it is now presented to us, furnishes an anomaly in the practice as regulated by our courts. It purports to be an appeal from a judgment rendered by Judge Robinson at the February Term, 1901, of the Superior Court of Gaston County, when in reality it is an appeal from a judgment rendered by Judge Starbuclc at the August Special Term, 1900, of the Superior Court of that county between the same parties.

The defendants’ appeal from the judgment of Judge Robinson is merely nominal, for there was no trial Avhen that judgment was rendered, and the judgment was simply one following the decision of this Court in the appeal heard at the September Term, 1900. It was in reality entered for the purpose of bringing up, for a hearing before this Court, certain exceptions made by the plaintiff in the trial before Judge Starbuck to the rejection of certain evidence offered by the defendant in the trial before that Judge.

The course pursued by the defendant in the matter is a departure from both the statutory provisions in force in this State upon the subject of appeals to the Supreme Court and the settled practice of this Court, and can not be allowed. Upon the rendition of a final judgment in the Superior Court, any person aggrieved thereby may appeal to this Court, but he must do so within the time allowed under section 549 of The Code, and the statutes amendatory thereof, unless by an agreement of counsel the time be waived. There is no provision in our law by which a party, in an appeal from a judgment rendered at one term, can bring up for review to this Court exceptions pertaining to another trial where final judgment has been rendered, even though the trial be between the same parties and in the same action, thus holding in abeyance exceptions made at a former trial beyond the time allowed by law for appeal.

If a party, who has recovered judgment in the Superior Court, is so confident that the Supreme Court will affirm the judgment in his favor that he does not deem it necessary or worth his while to carry up, by his own appeal, his exceptions, it will be too late to complain when his adversary, the appellant on his appeal succeeds in having the judgment of the lower Court reversed. Such a course on the part of an aggrieved party, an appellee with exception, is attended with the risk that the judgment in his favor may be reversed by the appellate court, in which event the benefit of his exceptions will be lost to him.

And there is no hardship in the requirement that, in each trial where a final judgment is pronounced, the appeal shall follow upon that judgment by the aggrieved party; and the aggrieved party is the appellee who has filed exceptions as well as the appellant against whom judgment has been rendered.

If any other course were permitted the appellate Court would be troubled, most probably, with inaccuracies of statement in the record, uncertainties in the recollection of Judges and attorneys as to what occurred on the various trials, and complications that would invariably attend the statements of the eases on appeal made out by the different Judges — all embraced in one record.

The judgment of Judge Bobinson is conclusive on the defendant. The defendants’ appeal must be dismissed on the motion made in this Court by plaintiff’s counsel.

Appeal dismissed.  