Opinion
(Filed 14 September, 1921.)
Appeal and Error — Motion to Dismiss.
An appeal does not lie from the refusal of a motion to dismiss an action.
APPEAL by defendant from Calvert, J., at May Term, 1921, of WILSON.
C. P. Dickinson for plaintiff.
F. S. Spruill and Carl H. Davis for defendants.
The judgment appealed from is as follows: "The motion to dismiss, made by the defendant in his answer, is hereby overruled; and the other matters and things set up in the pleadings are hereby continued for further consideration by the court."
The uniform decisions of this Court have always been that "no appeal lies from a refusal to dismiss." McBryde v. Patterson, 78 N.C. 412, down to date, see cases cited under C.S. 638, at p. 278 of vol. 1. If it were otherwise, the defendant in every case could always get from 6 to 12 months delay by simply moving to dismiss and appealing from a refusal to do so.
It is useless to cite cases, for they are very numerous and without any exception. As this Court has said (as to another point): "There are some matters, at least, which should be deemed settled, and this is one of them." Burrell v. Hughes, 120 N.C. 279.
Appeal dismissed.
Cited: Capps v. R. R., 183 N.C. 184, 185; Wimberly v. R. R., 190 N.C. 445; Johnson v. Ins. Co., 215 N.C. 122.