Shaver v. Shaver

93 S.E.2d 615 (1956) 244 N.C. 311

Mary K. SHAVER
v.
Floyd N. SHAVER.

No. 669.

Supreme Court of North Carolina.

June 26, 1956.

Emery B. Denny, Jr., and Egbert L. Haywood, Durham, for plaintiff.

Ludlow T. Rogers, Durham, for defendant.

Reade, Fuller, Newsom & Graham, Durham, Amici Curiae, for appellees.

PER CURIAM.

It is apparent that the movant, Stanley M. Carpenter, was seeking the identical relief in his motion in the cause that his Honor purported to grant pursuant to his order to show cause in his judgment entered the 16th day of December 1955. The plaintiff and the defendant having theretofore appealed to the Supreme Court from the denial of their motions to dismiss for lack of jurisdiction, pursuant to the provisions of G.S. § 1-134.1, we hold that the Superior Court was without power to proceed in the cause pending disposition of the appeal in this Court. Harris v. Fairley, 232 N.C. 555, 61 S.E.2d 619; Hoke v. Atlantic Greyhound Corp., 227 N.C. 374, 42 S.E.2d 407; Lawrence v. Lawrence, 226 N.C. 221, 37 S.E.2d 496; Ridenhour v. Ridenhour, 225 N.C. 508, 35 S.E.2d 617; Vaughan v. Vaughan, 211 N.C. 354, 190 S.E. 492. A permissible appeal to this Court brings up the whole case. Bledsoe v. Nixon, 69 N.C. 81; Isler v. Brown, 69 N.C. 125; Combes v. Adams, 150 N.C. 64, at page 70, 63 S.E. 186; State v. Casey, 201 N.C. 185, 159 S.E. 337.

It follows, therefore, that the judgment entered by his Honor in the court below on the 16th day of December 1955, purporting to vacate and set aside the decree of divorce entered in this cause on the 27th day of May 1946, is a nullity and the same is hereby vacated and set aside.

Error.