Sprague v. Bond, 111 N.C. 425 (1892)

Sept. 1892 · Supreme Court of North Carolina
111 N.C. 425

*W. D. SPRAGUE v. L. N. BOND et al.

Practice — Demurrer—Appeal—Interlocutory Motions.

1. A motion to strike out an answer and that the Court declare a party unnecessary, and a demurrer because the answer does not state facts sufficient to constitute a defence to the action are interlocutory, and properly not appealable till final judgment.

2. A demurrer ore terms in the Supreme Court for the same cause does not stand upon any better ground.

This was a civil action tried before Graves, J., at the Spring Term, 1892, of Caldwell Superior Court.

The facts are stated in the opinion.

Messrs. M. Silver and I. T. Avery, for plaintiff.

Mr. S. J. Ervin, for defendants.

*426Bueavell, J.:

This cause was before the Court at February Term, 1891 (108 N. C., 382), and was remanded to the Superior Court of Caldwell County, where, at Fall Term, 1891, Mrs. Rebecca Bond Adams was “ allowed to come into Court and make herself a party defendant.” This was done “ on motion of defendant,” and the plaintiff took no exception. Thereafter Mrs. Adams filed an answer, of which it is sufficient to say that the facts alleged therein, if found to be true, may possibly have the effect to divert the fund for which the plaintiff is contending, from him to her. The plaintiff moved the Court to strike out this answer and to declare that Mrs. Adams was not a proper or necessary party to this action.” This motion was refused, and the plaintiff excepted. He then demurred to that answer; the demurrer was overruled and he excepted and appealed, and thus endeavored to bring this Court for review all these rulings. They are all interlocutory and cannot be appealed from ; but all these exceptions so noted, will be considered, if necessary, when a final judgment has been rendered. This Court will not, before the final determination of an action, entertain an appeal from an interlocutory order making additional parties. Lane v. Richardson, 101 N. C, 181. Nor will it, before such termination of the action, review the rulings of the Superior Court upon a motion to strike out the answer of a person who has been made a defendant, and to declare that such person is not a necessary party to the cause, unless the refusal to allow the motion prejudices a substantial right of the appellant. Merrill v. Merrill, 92 N. C., 657.

The plaintiff’s attorneys demurred ore tenus in this Court to the answer of Mrs. Adams, and moved “ to strike said answer from the record, and that said defendant be dismissed as a party to this action.” They state in writing the grounds for their demurrer, and say that “ said answer does not state facts sufficient to constitute a defence or counterclaim *427to this action,” and does not show any reason why Mrs. Adams should be a party. We cannot consider this demurrer or motion, as they only present in another form the questions disposed of above.

Appeal Dismissed.