Koonce v. Fort, 204 N.C. 430 (1933)

March 29, 1933 · Supreme Court of North Carolina

204 N.C. 430

DAISY V. KOONCE and Her Husband, F. P. KOONCE, v. HENRY K. FORT.

(Filed 29 March, 1933.)

1. Appeal and Error A e—

Where the question sought to be presented on appeal has become academic the appeal will be dismissed.

2. Ajtpeal and Error A d—

Appeals from interlocutory orders entered in this cause which is still pending upon exceptions to commissioners’ report of the sale of the lands are dismissed as premature.

Appeal by defendant from Frizzelle, J., at Chambers, in Snow Hill, N. 0., on 2 January, 1933.

Appeal dismissed.

This is an action to foreclose a mortgage executed by tbe defendant to secure bis note payable to tbe plaintiff, Daisy Y. Koonce.

Pursuant to a judgment and decree; rendered in tbe action at December Term, 1931, of tbe Superior Court of Carteret County, and in obedience to an order made by tbe clerk of said court, for a resale, under tbe provisions of N. C. Code of 1931, section 2591, tbe commissioners appointed by tbe court advertised tbe land described in tbe mortgage for sale on 3 January, 1933.

On 29 December, 1932, on the motion of the defendant, an order was made in the action by Judge Frizzelle, at his Chambers, in Snow Hill, N. C., by which the commissioners were restrained from selling the land on 3 January, 1933, or thereafter pending an appeal by the defendant from an order made by Judge Harris, at December Term, 1932, of the Superior Court of Carteret County. This order was dissolved and vacated by Judge Frizzelle, at his Chambers, in Snow Hill, N. 0., on 2 January, 1933.

The commissioners offered the land for sale on 3 January, 1933, pursuant to their advertisement, and thereafter filed with the court their report of said sale. The action is now pending in the Superior Court of Carteret County, before the judge, on exceptions filed to said report. These exceptions have not been considered or passed upon by the judge of the Superior Court of Carteret County.

The defendant appealed from the order of Judge Frizzelle, dated 2 January- 1933, to the Supreme Court.

B. A. Nurm and Warren & Warren for plaintiffs.

W. B. Snow for defendant.

CoNNOR, J.

This appeal must be dismissed. The question as to whether there was error in the order of Judge Frizzelle dated 2 January, 1933, is now academic. It appears from the record filed in this Court that after the order signed by Judge Frizzelle on 29 December, 1933, was dissolved and vacated by him on 2 January, 1933, the commissioners offered the land for sale on 3 January, 1933, and thereafter filed with the court a report of said sale. The action is now pending in the Superior Court of Carteret County, before the judge, on exceptions duly filed to said report.

The appeals from the order of Judge Moore, at October Term, 1932, and from the order of Judge Harris, at December Term, 1932, of the Superior Court of' Carteret County, are premature. These orders are interlocutory. There has been no.final judgment in the action, confirming the sale of the land described in the mortgage. Until such judgment has been rendered, this Court will not consider or pass upon the questions of law discussed on the argument and in the briefs filed on this appeal. See, however, the opinion, filed this day in the appeal by the plaintiffs in this action. (Koonce v. Fort, ante, 426.)

Appeal' dismissed.