Carpenter v. Carpenter

212 S.E.2d 915 (1975) 25 N.C. App. 307

Harry M. CARPENTER
v.
Kenan Casteen CARPENTER.

No. 7515DC33.

Court of Appeals of North Carolina.

April 2, 1975.

Wilkinson & Vosburgh by James R. Vosburgh, Washington, for plaintiff.

Haywood, Denny & Miller by George W. Miller, Jr., Durham, for defendant.

PARKER, Judge.

G.S. § 1-294 provides that "[w]hen an appeal is perfected as provided by this article it stays all further proceedings in the court below upon the judgment appealed from, or upon the matter embraced therein; but the court below may proceed upon any other matter included in the action and not affected by the judgment appealed from." Here, by entering the order of 25 November 1974 the District Court undertook to proceed upon the very matters which were embraced in and which were directly affected by the previous order appealed from which was dated 24 June 1974.

As a general rule on appeal takes the case out of the jurisdiction of the trial court, Wiggins v. Bunch, 280 N.C. 106, 184 S.E.2d 879 (1971); Bowes v. Bowes, 19 N.C. App. 373, 198 S.E.2d 732 (1973); Upton v. Upton, 14 N.C.App. 107, 187 S.E.2d 387 (1972); G.S. § 1-294; and, with certain exceptions noted in Machine Co. v. Dixon, 260 N.C. 732, 133 S.E.2d 659 (1963) and not here applicable, pending the appeal the trial judge is functus officio. Therefore, the District Court in the present case had no jurisdiction to hear and pass upon defendant's motion filed on 19 November 1974 while the appeal of this case was pending in the Court of Appeals.

Accordingly, the order of the District Court dated 25 November 1974 is

Vacated.

BROCK, C. J., and ARNOLD, J., concur.