Opinion
(June Term, 1829.)
Where an agreement was made that one of two similar suits should abide the event of the other, upon a dispute as to the terms of that agreement, it was Held, that the decision of the Judge of the Supreme Court thereon was conclusive, and a judgment entered according to the facts ascertained by him was affirmed.
ASSUMPSIT upon a promissory note made by one Muse, endorsed by the defendants for his accommodation, and negotiated to the plaintiffs. At the fall term, 1826, this cause, together with that of the same plaintiffs against Wilson Parker ( 12 N.C. 484), stood for trial. An affidavit was made by the attorney of the plaintiffs for the removal of both causes, and an order entered transmitting them to Gates.
The case was submitted, without argument, by Ruffin, for the plaintiffs, and Gaston, for the defendants.
FROM PASQUOTANK.
In consequence of an arrangement made by the counsel on both sides this cause was not removed to Gates, but it was agreed, as the defendants contended, that only the suit against Wilson Parker should be removed, and that this should abide the event of that. No entry was made of this arrangement, but this cause continued in Pasquotank, and was brought forward on the trial docket, with the following entry: "To await the decision of a case removed to Gates Superior Court."
At Spring Term, 1828, upon affidavit filed the following rule (108) was made, nunc pro tunc as of fall term, 1826: "It is agreed between the plaintiffs and defendants' attorneys, that whatever decision shall be made in the suit State Bank v. Wilson Parker, removed at this term to Gates for trial, the like decision shall be made in the other suit — State Bank v. Knox Martin — and that the order to remove the last-mentioned suit be rescinded, and the same is rescinded. And the said last-mentioned suit is retained in this Court to await the decision of the case State Bank v. Wilson Parker."
At the Fall Term of 1828, before his Honor, Judge STRANGE, the plaintiffs move to rescind this rule, and several affidavits were filed in support of and against the motion. It is though that it is not necessary to present a statement of them.
His honor having refused to set aside the rule, the defendants produced a regularly certified copy of the record in the case of State Bank v. Wilson Parker, and moved for judgment in their favor, which being entered, the plaintiffs appealed.
Upon the affidavits offered to the Court at April Term, 1828, the order for the removal of this suit to Gates Superior Court for trial was rescinded; and the entry of the agreement that it should await the decision of the suit State Bank v. Wilson Parker, removed from Pasquotank to Gates Superior Court, was made as of April Term, 1826, that being the term at which the agreement was entered into, as appears from affidavits then offered to the Court, and of which that Court was the only competent judge.
No objection appears to have been made to these entries at that time. At the Supreme Court in June, 1828, where the suit Bank v. Wilson, 12 N.C. 484, had been carried by appeal from the Gates Superior Court, judgment was given for the defendants. Afterwards, (109) at October term of Pasquotank Superior Court, a motion was made in this suit to rescind the entry directing it to await the decision to be made in the suit Bank v. Wilson. This was refused by the Court, and the same judgment was entered in it which had been given in the suit Bank v. Wilson. In this I think the Judge acted correctly. It is to be observed that the last-mentioned motion was not made until the judgment of this Court in the suit against Wilson was known, and then to have permitted the motion to prevail would have been to permit the plaintiff to try his fortune a second time, contrary to his agreement. I say agreement, because the Superior Court, judging from the affidavits, considered that there was one.
PER CURIAM. Affirmed.
Cited: Carroll v. Haywood, 64 N.C. 482.