(February Term, 1885.)
Where part of the issues in an action are decided by a trial, and others, material to the final disposition of the cause, are left open for further adjustment, an appeal is premature, and it will not be entertained.
CIVIL ACTION, heard before Avery, Judge, and a jury, at February Term, 1884, of WAKE Superior Court.
Messrs. Fuller Snow, Reade, Busbee Busbee, J. W. Hinsdale and E. C. Smith, for the plaintiff.
Messrs. D. G. Fowle and G. V. Strong, for the defendant.
The parties entered upon the trial of the issues evolved out of the conflicting allegations contained in the pleadings, among which was an inquiry of the damages sustained by the plaintiff from the defendant's conversion of the bonds in his custody by a sale, and his misappropriation of the proceeds to his own use. This issue was by the Judge withdrawn from the jury, in order that, if rendered necessary by the other findings, it might become the subject of further reference and inquiry.
After the rendition of the verdict upon the other matters submitted, judgment was entered requiring the defendant to surrender the bonds, or, if unable to do so, an order of reference was made to a commissioner to ascertain the value of the misapplied bonds, as the measure of the damages to which the plaintiff was entitled, in lieu of such surrender. From this judgment, and without awaiting the results of the reference, the defendant appeals.
We have repeatedly ruled that under such circumstances, when a part of the issues or matters in dispute are passed on, and others material to a disposition of the cause, left open, an appeal was premature and would not be entertained. The cases are numerous to this effect and we are content to refer to some of them. Hines v. Hines, 84 N.C. 122; Commissioners v. Satchwell, 88 N.C. 1; Jones v. Call, 89 N.C. 188; Grant v. Reese, 90 N.C. 3; Arrington v. Arrington, 91 N.C. 301.
In accordance with these adjudications the appeal must be dismissed, and it is so ordered. Let this be certified to the Superior Court of Wake.