Patrick v. Hurdle

171 S.E.2d 58 (1969)

7 N.C. App. 44

J. H. PATRICK and Wachovia Bank and Trust Company, Executors of the Will of P. P. Gregory, Deceased v. Joe L. HURDLE.

No. 691SC404.

Court of Appeals of North Carolina.

December 17, 1969.

*59 Leroy, Wells, Shaw & Hornthal by L. P. Hornthal, Dewey W. Wells, Elizabeth City, for plaintiffs.

John T. Chaffin and Gerald F. White, Aydlett & White, Elizabeth City, for defendant.

BROCK, Judge.

By motion filed in this cause on 4 September 1969, plaintiffs concede error as follows: "The question presented in this appeal has been rendered moot by the opinion filed on 27 August 1969: if the order changing venue was improperly entered, of necessity the Pasquotank County Superior Court had no jurisdiction to try the case. The plaintiffs concede error on this appeal and will file no brief in opposition to a reversal of the judgment below."

An appeal from an appealable interlocutory order carries the interlocutory order and all questions incident to and necessarily involved therein to the appellate division. Keith v. Silvia, 236 N.C. 293, 72 S.E.2d 686; Bailey v. McPherson, 233 N.C. 231, 63 S.E.2d 559; Sinclair v. Moore Central R. Co., 228 N.C. 389, 45 S.E.2d 555; Strong, N.C.Index 2d, Appeal and Error, § 16. And the appeal stays all further proceedings in the trial court upon the order appealed from, or upon the matters embraced therein. Bohannon v. Virginia Trust Company, 198 N.C. 702, 153 S.E. 263. The very question sought to be determined by the former appeal was the right of the Superior Court of Currituck County to transfer this case to the Superior Court of Pasquotank County for trial; therefore, the Superior Court of Pasquotank County was without jurisdiction to try the case pending the appeal.

Since the Superior Court of Pasquotank County was functus officio to try the case, it follows that the trial, the verdict and the judgment are nullities. The verdict rendered by the jury at the May 1969 Session *60 of Pasquotank Superior Court is set aside and the judgment entered thereon is vacated.

Judgment vacated.

BRITT and VAUGHN, JJ., concur.