Benton v. Collins, 121 N.C. 66 (1897)

Sept. 1897 · Supreme Court of North Carolina

121 N.C. 66

W. A BENTON v. RUFFIN COLLINS.

Interlocutory Order — Practice—Premature Appeal.

An appeal from an order of the Court below setting aside the verdict on one of sevc ral issues and awarding a new trial thereon is premature and will be dismissed. In such case, an exception should have been noted which could have been passed upon on the appeal from the final judgment.

Civil ACTION for damages, tried before Timberlake, J., and a jury, at April Term, 1897, of FeakkliN Superior Court. From au order of Plis Honor setting aside the verdict on the issue of damages and awarding a new trial, the defendant appealed.

Mr. Charles M. Cooke, for plaintiff.

Hems. F. 8. Spruill, IF. B. Shaw and T. W. Bickett, for defendant (appellant).

Faircloth, C. J.:

A verdict was recorded on all the issues submitted. On motion of the plaintiff the court set aside the verdict on the issue of damages and awarded a new trial on that issue. The defendant excepted to this ruling and order, and appealed to this court.

The appeal is premature.’ He should have noted his exception and proceeded with the trial and brought the whole case to -this court on final judgment. This course would not affect any substantial right. This question has been so often decided as to need only a reference to Hilliard v. Oram, 106 N. C., 467, and the numerous cases cited.

Appeal dismissed.