Chadwick v. Norfolk-Southern Railway Co., 161 N.C. 209 (1912)

Sept. 25, 1912 · Supreme Court of North Carolina

161 N.C. 209

W. S. CHADWICK v. NORFOLK-SOUTHERN RAILWAY COMPANY et als.

(Filed 25 September, 1912.)

Appeal and Error — Processioning Lands — Fragmentary Appeal — Order Remanding Cause to Clerk — Practice.

An appeal from tlie order of the Superior Court judge reversing the judgment of the clerk of the court and remanding the cause to hiim to the end! that the proper order for a survey be made in proceedings to procession lands, under Revisal, sec. 326, is premature, and a motion to dismiss should be allowed; exceptions should have been taken to the order and the final result appealed from.

Appeal from an order of Foushee, J., heard at chambers, 11 March, 1912, from Cabteret.

This is a processioning proceeding.

Guión & Guión for plaintiff.

E. H. Gorham, G. R. Thomas', J. F. Duncan for defendants.

Pee. Curiam.

The plaintiff moves to dismiss this appeal in this Court upon the ground that the same is premature. The clerk of the Superior Court dismissed the proceedings.

Upon appeal at chambers,, the judge presiding in tbe Third Judicial District reversed the. judgment of the clerk and remanded the same to him, to the end that the proper order be made of survey, etc., in accordance with the statute. Revisal, 326.

We are of opinion that the motion to dismiss this appeal because it is premature should be allowed. It was the duty of the defendant to have noted every exception and let the cause proceed to the hearing under the statute, and then, if dissatisfied with the final result, upon exceptions properly taken, the cause can be heard in the Superior Court, and thence by appeal to this Court.

Appeal dismissed.