#### STEPHEN W. ISLER v. ISAAC BROWN et al.

When an appeal is taken from the final j udgment of the Superior to the Supreme Court, the whole case is taken up to the latter Court, and if the judgment be affirmed, remains there, so that the Judge of the Superior Court has no power to set aside the judgment upon the ground of mistake, &c., under the 133 section of the O. C. P.

This was an application under the C. C. P., sec. 133, made to the Judge of the Superior Court of Jones county, to set aside a judgment between the parties upon the ground that it had been obtained by a mistake. His Honor, Clarke, J., made order to set the judgment aside and granted a new trial at the last term of the Court, and the plaintiff appealed. The case is sufficiently stated in the opinion of the Court.

Green, for the plaintiff.

Haughton and Battle & Son, for the defendants.

Reade, J.

At a former term of the Court below there had been judgment against the plaintiff, and he appealed to this Court, and at- Term of this Court there was a new trial granted ; and at Spring Term, 1872, of the Court below there ivas judgment for plaintiff, and the defendant appealed; and at the June Term of this Court the judgment was affimed, and judgment here for plaintiff; 67 N. C. Rep. 175.

At Spring Term, 1873, of the Court below, the defendant moved to vacate the judgment rendered against him at Spring Term, 1872, upon the ground of mistake under C. C. P. sec. 133, and his Honor vacated the judgment and granted a new trial, from which the plaintiff appealed to this Court.

In this there was error. There ivas no judgment below which his Honor could vacate. The appeal to this Court vacated the judgment below, and then there was judgment in this Court at June Term, 1872, in favor of the plaintiff.

*126There being no judgment below to vacate, and his Honor having no power to vacate the'judgment of this Court, it follows that the order below vacating the judgment and granting a new trial was erroneous.

This will be certified.

Per Curiam. Order reversed.