Thomas v. County of Carteret, 180 N.C. 109 (1920)

Sept. 29, 1920 · Supreme Court of North Carolina
180 N.C. 109


(Filed 29 September, 1920.)

Appeal- and Error — Issue Set Aside — Fragmentary Appeal — Final Judgment.

Where, in bis discretion, the trial judge bas set aside tbe verdict on a determinative issue of several issues submitted to tbe jury, and given tbe several parties lieve to amend tbe pleadings upon wbicb to try tbe issuable matters, an appeal from bis action is a fragmentary one, and not reviewable until final judgment bas been obtained.

Civil action-, tried before Connor, J., at June Term, 1920, of Car-teret, upon these issues:

• “1. In what amount, if any, is Thomas Thomas, trustee of the courthouse bond sinking fund, indebted to. Carteret County ? Answer: '$13,-236.49, with interest.’

“2. What sum, if any, is Carteret County entitled to- recover of the United States Fidelity & Guaranty Company as surety for Thomas Thomas, treasurer of Carteret County'? Answer: 'Nothing.’

“3. What sum, if any, is Carteret County entitled to recover of Mace, administrator of Alonzo Thomas, deceased, on the bond of Thomas Thomas, trustee? Answer: '$5,000.’

“4. Were the note and mortgage of T. M. Thomas and wife, Laura, executed to Thomas Thomas and assigned to Carteret County, taken and accepted with the understanding and agreement that the same should *110be used only after tbe other securities held by tbe county for Thomas Thomas, trustee, has been exhausted, as alleged in the complaint? Answer : ‘No.’

“5. What sum, if any, is Carteret County entitled to recover of T. M. Thomas and wife on account of the note for $13,500, secured by mortgage assigned to said county by Thomas Thomas ? Answer:.”

There was motion by plaintiffs to set aside the verdict and for new trial. Motion refused. On plaintiff’s motion, the court set aside the verdict on fourth issue.

Defendant Mace, administrator, moves judgment of the court on the verdict. Motion denied. Exception. Judgment tendered by. defendant as appears in the record refused; exception. Verdict as to fourth issue set aside; defendant excepts, and again moves for judgment on the verdict; denied; exception.

Defendant, United States Fidelity & Guaranty Company, moves judgment on the verdict; denied; exception; _ judgment tendered; refused; exception.

Both named defendants appeal from refusal of judgment on verdict. Notice of ajjpeal in open court. Appeal bond fixed at $50.

Whereupon the following order was entered by the court:

Oedee (at June Term, 1920).

This cause coming on to be heard upon the verdict rendered by the jury, the plaintiffs move his Honor to set aside the verdict for errors to be assigned. Motion is denied, and plaintiffs except.

The plaintiffs move that the verdict be set aside -on the fourth issue. The motion is allowed, and the verdict is set aside as to the fourth issue in the discretion of the court.

■ This cause is continued to the end that such further issues may be tried as may be necessary to determine the rights of the parties, with leave to the plaintiffs to file within thirty days any reply and further -pleadings as they may deem necessary, and to the defendants to file such further pleadings as they may desire within 60 days thereafter. Defendants Mace, administrator, and United States Fidelity & Guaranty Company excepted to said order, and again move for judgment on the verdict; motion denied; defendants appeal.

Ward & Ward and II. S. Ward for plaintiffs.

O. L. Abernethy and M. Leslie Davis for Carteret County and Davis, .Treasurer.

Julius F. Duncan for Mace, administrator.

J. L. Bandleman, D. L. Ward, and' J. F. Duncan for United States Fidelity & Guaranty Company.

*111BbowN, J.

We are of opinion, tbat tbis appeal is premature, and under tbe rules of tbe Court it must be dismissed ex mero motu. It is well settled by numerous decisions that tbis Court will not entertain premature or fragmentary appeals. Cameron v. Bennett, 110 N. C., 77; Milling Co. v. Finley, 110 N. C., 412. In tbe last ease it was held tbat an appeal only lies from a judgment. Taylor v. Bostic, 93 N. C., 415. No judgment of any"kind appears in tbe record. ,Of course there are cases in which an appeal will lie from a refusal to sign judgment upon issues tbat have been found by tbe jury, but tbis is not one of them. His Honor in his discretion set aside tbe verdict on tbe fourth issue, and continued tbe case to tbe end tbat. such further issues may be tried as may be necessary to determine the rights of tbe parties. Tbe court granted leave to plaintiff and defendants to file further pleadings. There was a motion made by tbe plaintiff to set aside tbe verdict on all issues, which motion was refused, and the plaintiff excepted. It may be tbat tbe plaintiff desires to appeal from tbe rulings of tbe judge upon tbe trial of tbe issues which have not been set aside. They cannot do so until a final judgment is rendered. Tbe cause must be remanded to tbe end tbat tbe order made by bis Honor be carried out, and a final judgment rendered. Tbe costs of tbis Court will be paid by tbe appellants Mace, administrator, and tbe United States Fidelity & Guaranty Company.

Dismissed and remanded.