Bowes v. Bowes

198 S.E.2d 732 (1973)

19 N.C. App. 373

Eula S. BOWES v. Mellie Lewis BOWES.

No. 7317DC236.

Court of Appeals of North Carolina.

September 12, 1973.

*733 Julius J. Gwyn, Reidsville, for plaintiff appellee.

Harry J. O'Connor, Jr., and Donald K. Speckhard, Greensboro, for defendant appellant.

MORRIS, Judge.

Defendant gave notice of appeal and the court entered appeal entries as to the judgment of 30 August 1972, granting plaintiff divorce a mensa et thoro, entered on the jury verdict of abandonment. On appeal, however, defendant does not bring forward any exception or assignment of error with respect to this judgment, nor does the record contain any assignment of error as to this judgment.

The appeal itself, however, is an exception to the judgment and to any matter appearing on the face of the record proper. Dilday v. Board of Education, 267 N.C. 438, 148 S.E.2d 513 (1966). Prejudicial error does not appear.

Pending the appeal from the judgment entered 30 August 1972, the court held two hearings in this action. The first resulted in a judgment awarding plaintiff custody of the minor child and providing for child support, alimony, and counsel fees. The second resulted in a judgment modifying the alimony award. Defendant attempts to appeal from these judgments. The court had no jurisdiction to hold hearings and enter judgments pending the appeal. Wiggins v. Bunch, 280 N.C. 106, 184 S.E.2d 879 (1971); Pelaez *734 v. Carland, 268 N.C. 192, 150 S.E.2d 201 (1966). See also Upton v. Upton, 14 N.C.App. 107, 187 S.E.2d 387 (1972). We, therefore, choose to treat the purported appeal as a petition for a writ of certiorari which we have allowed. Because of the lack of jurisdiction in the trial court, the two judgments are vacated and the cause remanded for further proceedings.

The result of the foregoing is this:

Judgment dated 30 August 1972, affirmed.

Judgment dated 1 September 1972 and Order dated 19 October 1972 modifying the judgment of 1 September 1972, vacated and cause remanded for further proceedings.

BROCK and VAUGHN, JJ., concur.