Teal v. Liles, 183 N.C. 678 (1922)

April 26, 1922 · Supreme Court of North Carolina
183 N.C. 678
W. D. TEAL and J. F. THOMAS v. J. S. LILES, Receiver of the POLKTON LUMBER COMPANY

W. D. TEAL and J. F. THOMAS v. J. S. LILES, Receiver of the POLKTON LUMBER COMPANY.

(Filed 26 April, 1922.)

Appeal and Error — Counterclaim—Demurrer—Fragmentary Appeals— Dismissal.

Where there is neither verdict nor judgment upon the plaintiffs’ alleged cause of action, defendant’s appeal from an order sustaining the plaintiffs’ demurrer to a counterclaim set up in the answer, is fragmentary, and will be dismissed.

Appeal by defendant from Lane, J., at November Term, 1921, of ANSON.

This is an action to recover for 43,187 feet of lumber at $22 per 1,000 feet, delivered by plaintiffs to defendant, and accepted by them. To the complaint the defendants set up a counterclaim for breach of contract in failing to manufacture lumber of certain timber, and asking judgment for $13,938.66 damages.

The court sustained the demurrer of plaintiffs to the counterclaim, and the defendant appealed.

*679 A. A. Tarlton and Robinson, Caudle & Pruett for plaintiffs..

B. V. Henry and McLendon & Covington for defendant.

Per Curiam.

The court having sustained a demurrer to the counterclaim, the defendant appealed, and asks this Court to reverse the judgment sustaining the demurrer on the counterclaim, and that a jury trial may then be had on the counterclaim. There was no verdict or judgment upon the plaintiffs’ cause of action, and no judgment as to the costs. This Court has uniformly adhered to its ruling that it will not entertain a fragmentary appeal.

The whole subject was recently fully discussed with the fullest citation of authorities, and upon the reason of the thing, at last term, in Cement Co. v. Phillips, 182 N. C., 439, citing very numerous authorities.

That decision was cited with approval at last term by Adams, J., in Farr v. Lumber Co., 182 N. C., 727; and also in Leroy v. Saliba, ibid., 757.

The rules of practice are well settled, and well known to the profession, and are based upon the soundest reasons in the dispatch of the public business by the courts, and a slight attention to them would avoid such inadvertences as in this instance.

Appeal dismissed.