#### LAURA LANCASTER et als. v. J. L. BLAND et al.

(Filed 10 March, 1915.)

1. Appeal and Error — Certiorari—Appeal Dismissed — Newly Discovered Evidence — Superior Courts — Jurisdiction.

Where an appeal has been docketed and dismissed in the Supreme Court under Rule 17, for failure to prosecute it, the adjudication relates back to the final judgment appealed' from, and the Superior Court judge is without jurisdiction to consider a motion for a new trial for newly discovered evidence.

2. Appeal and Error — Newly Discovered Evidence — Superior Courts.

An appeal will not lie from the refusal of the Superior Court judge, in his discretion, to grant a new trial for newly discovered evidence.

Motion for certiorari.

W. D. Mclver for petitioner.

D. L. Ward for defendant.

Clark, 0. J.

Tbis cause was tried and judgment entered at April Term, 1914, of Graven-. Tbe plaintiff appealed, but did not perfect bis appeal, and at tbe call of tbe district at tbe Fall Term of tbis Court tbe defendant docketed tbe required certificate and moved under Eule 17 to dismiss, wbicb was allowed. Thereafter, at tbe November Term of tbe court below tbe plaintiff filed a petition for a new trial for newly discovered evidence. •

His Honor properly beld tbat be bad no jurisdiction to entertain tbe motion. Tbe case was terminated by tbe final judgment at tbe April Term of Craven, unless it bad been kept alive by prosecuting an appeal. Tbis not being done, tbe defendant could bave bad tbe case put off tbe docket at tbe next term in tbe court below, on motion, for failure to prosecute tbe appeal (Avery v. Pritchard, 93 N. C., 266, and cases citing tbe same in tbe Anno. Ed.), or tbe defendant could make tbe same motion in tbis Court by docketing tbe certificate and moving to' dismiss under Eule 17. Whichever method tbe appellee might resort to, and whether tbe judgment dismissing tbe appeal for failure to prosecute was entered in tbe Superior Court or in tbis Court, such adjudication dates back to tbe final judgment from wbicb tbe appeal was not prosecuted.

Tbis case having been adjudged by tbe order of dismissal in tbis Court to bave been terminated at tbe April Term, 1914, of tbe Superior Court, tbe attempt to file a motion for a new trial for newly discovered testimony at tbe November Term of said Superior Court could avail nothing. Tbe bare fact tbat tbe name of tbe case was still on tbe docket did not make it a live cause. It bad .been terminated, fully and completely, by tbe final judgment at tbe April Term from wbicb tbe appeal bad not been prosecuted.

*378The court below, therefore, correctly held that he had no power to entertain a motion for a new trial, at a term subsequent to that at which final judgment had been entered. When judgment has been affirmed or reversed on appeal it is a live case till, on receipt of the certificate, judgment has been entered below in conformity therewith, unless final judgment is entered here. Smith v. Moore, 150 N. C., 158.

Blade v. Blade, 111 N. C., 300, and Banking Co. v. Morehead, 126 N. C., 279; were live cases in which proper motions could be made because, though the certificate had been sent down, judgment had not been entered in accordance therewith in the court below.

In the present case the adjudication was not on the merits, but simply that the appeal had been abandoned at April Term, 1914, of the lower court, and there was no judgment to be entered in accordance therewith, and no motion could be made in a dead case. The judge had no jurisdiction except to put the case off the docket. The case was not sent back to the lower court at all. Even if the court had jurisdiction and had refused the motion on its merits, no appeal lay. Fleming v. R. R., ante, 248.

Certiorari denied.