Pender v. Mallett, 122 N.C. 163 (1898)

May 2, 1898 · Supreme Court of North Carolina

122 N.C. 163

JOHN R. PENDER, Receiver v. J. P. MALLETT et al.

(Decided May 2s, 1898).

Practice — Appeal—Demurrer—Order for Examination Under Section 580 of The Code.

1. An appeal lies from a judgment overruling a demurrer.

2. A party caenot appeal from an order to appear before the Clerk to be examined under oath concerning the matters set out in the pleadings as provided in Section 580 et. seq. of The Code.

Petition by defendant for Certiorari as substitute for an appeal in an action pending in Edgecombe Superior Court on the grounds stated in the opinion.

Mr. Jacob Battle, for plaintiff.

Mr. O. M. T. Fountain, for defendants (petitioners).

Clark, J.:

The Court overruled the demurrer, gave the defendant time till the 20th May, to file answer, and ordered that defendants appear before the Clerk to be examined under oath concerning the matters set out in the pleadings, Code, Section 580 et seq. The defendant excepted to the order and the judgment, but the Court being of opinion that an appeal did not lie, noted the exception and directed the Clerk not now to send up a transcript. The defendants thereupon applied, after notice to the plaintiff, to this Court for a certiorari. It is true that an appeal from the order of examination is premature and will not lie. Vann v. Lawrence, 111 N. C., 32; Holt v. Warehouse Co., 116 N. C., 480. But an appeal lies from the judgment overruling a demurrer. Commissioners v. Magnin, 78 N. C., 181; Ramsay v. Railroad, 91 N. C., 418, and they are decisive of this application. The hearing here was complicated with other matters which have no bearing upon the sole question before us, which is as to the defendant’s right to appeal at this stage of the case. The certiorari will issue, but it will not suspend the order of examination of defendants.

Motion allowed.