#### COOK v. AMERICAN EXCHANGE BANK.

(Filed April 15, 1902.)

PLEADINGS — Anstoei—Judge —Discretion —Judgment —The Code, See. 274-

The trial court can not permit an answer to be filed after the supreme court has decided that judgment should have been entered by default for the plaintiff.

ActioN by P. E. Cook, trustee of Andrew Brown, bankrupt, against the American Exchange Bank and others, heard by Judge Geo\ II. Brown, at November Term, 1901, of the Superior Court of Dake County. Erom an order allowing defendants to file an answer and refusal of judgment for the plaintiff, the plaintiff appealed.

F. H. Busbee and E. F. Aydlett, for the plaintiff.

Busbee & Busbee and Q. W. Ward, for the defendants.

Cook, J.

When this case was before us upon appeal at the' August Term, 1901 (129 N. C., 149), the questions therein raised were fully considered, and it was decided that the plaintiff was “entitled to judgment by default and inquiry,” and that the Court had “erred in not granting the same.” When the case again came on for hearing in the Superior Court, and being heard upon the certificate of this Court, defendants, People’s Bank and Ensign. & Son, again “moved to dismiss the action for want of legal service; and at the same time plaintiff moved for judgment by default and inquiry for want of an answer, the complaint having been filed Spring Term, 1900.” “The Court, in the exercise of its discretion, overruled plaintiff’s motion” for judgment, to which he excepted, “and granted the motion of defendants 'to file an answer, and the answer was filed,” to which plaintiff excepted and appealed.

*184The time for filing an answer had not only expired, bnt this Court had decided (Cook v. Bank, supra) that the Court below erred in not rendering judgment for plaintiff; so the matters in controversy were concluded by a final determination of this Court, and it was not then within the discretion of his Honor to reopen the case for further pleadings, or for any other purpose. Indeed, it was within the province of this Court to have rendered the judgment here (Section 957 of The Code; Alspaugh v. Winstead,, 79 N. C., 526; Griffin v. Light Co., 111 N. C., on page 438), and a motion to that effect was then made, and is now renewed, but not granted.

The case of Banking Co. v. Morehead, 126 N. C., 279, cited by learned counsel for defendants, is distinguishable from the case at bar. In that case the amendment to the answer (which had been regularly filed) was not allowed for the purpose of disturbing the status fixed by the decision of the Court between the plaintiff and defendants (which the Court there held could not be done), but for the purpose of enabling the defendants to establish their respective liabilities among themselves, and to preserve a lien upon realty which would be lost if á separate action should be resorted to. In this case defendants asked leave to file an answer after this Court had determined that it was the duty of the Judge below to have entered judgment for plaintiff. They had had their day in Court, and at no time did they plead or ask leave to do so, until after the door was closed against them. Had they entered a special appearance for the purpose of obtaining a ruling upon the service, or the effect of their stipulation, it would have been within the discretion of the Court to allow them to file their answer after being adjudged to have been brought into Court, whether by service or by reason of the stipulation entered into by them. But they chose a different course; and now, after judgment, it is not within the discretion of the Court to allow them to file an answer which they failed or re*185fused to do witbin tbe time limited for sucb purpose. It is true tbe judgment bad not been actually rendered in tbe Court below, but it bad been decided by tbis Court that it should be.

Tbe discretion vested in tbe Judge (The Code, Sec. 274) to allow an answer to be made after tbe time limited, terminates with tbe judgment, that is, after tbe final judgment has been rendered in tbe Superior Court, or ordered by tbis Court to be rendered, it is not witbin tbe discretion, of tbe Judge to allow an answer to be filed. “Amendments” to sucb answer as had been filed (The Code, Sec. 274) are not germane to tbis case, as no answer whatsoever bad been filed before tbe final decision.

There is error, and tbis case is remanded to tbe end that judgment by default and inquiry may be entered in favor of tbe plaintiff in accordance with tbis opinion.

Error.