Smith v. Matthews, 203 N.C. 218 (1932)

Sept. 21, 1932 · Supreme Court of North Carolina

203 N.C. 218

L. B. SMITH, Administrator of PAUL SMITH, v. O. P. MATTHEWS.

(Filed 21 September, 1932.)

Appeal and Error A d — Appeal from order setting aside the verdict in the court’s discretion will be dismissed as premature.

An appeal before final judgment which an appeal from the final judgment would include and protect is premature and will be dismissed.

Appeal by defendant from. Harris, J., at June Term, 1932, of Wayne.

Appeal dismissed.

Charles P. Qaylor and J ames J. Hatch for appellant.

Dickinson & Freeman for appellee.

Per Curiam.

This is an action to recover damages for wrongful death caused by alleged negligence of the defendant. The issues of negligence, contributory negligence, and damages were answered in favor of the plaintiff. The court as a matter of discretion set aside the verdict as to damages. The defendant appealed.

“A premature appeal is one which is taken before final judgment, or upon an order affecting a substantial right which could be protected by an appeal from a final judgment.” McIntosh’s Practice & Procedure, sec. 676(7). The present appeal is premature and will be dismissed. Chambers v. R. R., 172 N. C., 555; Joyner v. Reflector Co., 176 N. C., 274; Thomas v. Carteret, 180 N. C., 109.

Appeal dismissed.