Moody v. Riley

Held that cause should not be remanded.

OPINION In this cause, a demurrer to the complaint was sustained, judgment for plaintiff was entered, and defendant appealed. No error appearing in the record, the judgment was affirmed. A rehearing was granted for the purpose of considering whether or not the cause should be remanded for the purpose of giving the appellant an opportunity to apply to the court below for leave to amend her complaint in order to state, if she could, a cause of action for specific performance.

1. On the argument on rehearing, the appellant acceded to the argument and authorities presented by respondent to the effect that, if there be no error attributable to the trial court, this court is without jurisdiction to remand the cause for further proceedings. On the authorities presented, we conclude that the cause should not be remanded. N.C.L. secs. 8377, 9385.62; 5 C.J.S. 1358, sec. 1872, note 83; People v. Jackson,24 Cal. 630; Sutter v. City and County of San Francisco, 36 Cal. 112; O'Hara v. Los Angeles County Flood Control District,119 Cal. 2d 61, 119 P.2d 23.

HORSEY, C.J. and BADT, J., concur.

On the original appeal of this cause, the Governor commissioned Hon. WM. D. HATTON, Judge of the Fifth Judicial District, to sit in the place of EATHER, J., by reason of the latter's illness. Judge HATTON, accordingly, likewise participated, in place of Justice EATHER, in the rehearing.