Opinion
September Term, 1890.
Appeal — Case on Appeal — Record — What Essential in Appeals — Interlocutory Order — Final Judgment.
1. Where the facts, upon appeal to this Court, appear only from the statement of the case, and there is no transcript of the record, and it does not appear that a court was held at the time and place appointed by law, the appeal will be dismissed in this Court.
2. Generally, an appeal at once does not lie from an interlocutory order. The appellant should have assigned error of record and appealed from the final judgment.
MOTION heard by Bynum, J., at the September Term, 1890, of NEW HANOVER.
Iredell Meares for plaintiff.
S.C. Weill for defendants.
On 5 April, 1888, the plaintiff brought this action against two of the defendants. On 6 April, 1889, without leave of the court, he caused a summons to be issued making the appellant a party defendant with the defendants at first made such. At the Spring Term, 1889, on a day in the term, the court made an order discontinuing the action as to the appellant. At the same term, on the next day, that order was stricken out, and the appellant was notified to show cause why he should not be made a defendant. At the September Term of the same year, the court allowed the motion to make appellant a party defendant, and allowed the plaintiff thirty days within which to file his complaint, and the defendant appellant sixty days within which to file his (312) answer. The appellant contended that this was but an allowance to the plaintiff to make him a defendant; that the summons issued theretofore as to him was void; and the plaintiff would have to issue another summons as to him, returnable at the next term.
Plaintiff insisted that the appellant was in court under the summons issued, and the notice to show cause, and that this was the appearance term. The court held, as matter of law, and not as matter of discretion, that this was the appearance term, and ordered the pleadings to be filed as to this term.
The appellant excepted and appealed to this Court.
The facts stated above appear only from what purports to be the case settled on appeal in a case therein mentioned. There is no transcript of a record proper. It does not appear that a court was held at the time and place prescribed by law, no summons or pleadings appear; there is no transcript of the record of an action in the Superior Court. Moreover, if a proper transcript appeared, the supposed appeal was taken from an interlocutory order, from which an appeal at once did not lie. The appellant should have assigned error on the record, and appealed from a final judgment.
The appeal must be
Dismissed.
Cited: Sinclair v. R. R., 111 N.C. 509; Monroe v. Trenholm, 114 N.C. 590.
(313)