Opinion
September Term, 1890.
Interlocutory Orders — Appeal — Final Judgment.
In an action to foreclose a mortgage, it appeared that the plaintiffs had a lien upon the land specified, and the court made an order directing that an account be taken to ascertain the balance of the debt yet unpaid, and retaining the cause for further action: Held, that the order was interlocutory, and appeal would not lie from it.
ACTION for foreclosure of a mortgage, tried at December Term, 1889, of CUMBERLAND, before MacRae, J. The facts appear in the opinion.
H. McD. Robinson and Thos. H. Sutton for plaintiffs.
J. B. Batchelor, John Devereux, Jr., and N.W. Ray for defendants.
This case is intended to present several very interesting questions which were argued elaborately by counsel at the last term, but we are not at liberty to decide them now, because the case is not properly in this Court. The counsel failed to direct our attention to the character of the order appealed from, and we did not observe it until we came to scrutinize the manuscript record. We may add, in this connection, that the plaintiff cannot have benefit of his exception presenting an important question argued unless he shall appeal at the proper time.
It appears that, upon the pleadings and facts found by the jury, the court below adjudged that the plaintiff had a lien upon the land specified in the complaint to secure his debt, and made an order directing that an account be taken to ascertain the balance of his debt yet unpaid, and retaining the case for further action, The feme (335) defendant excepted, and at once appealed to this Court.
Obviously, an appeal did not lie from such interlocutory order. It would lie only from the final judgment. Blackwell v. McCaine, 105 N.C. 460, and cases there cited.
Appeal dismissed.
Cited: S. c., 111 N.C. 605; Shankle v. Whitley, 131 N.C. 168.