The defendants have appealed three times from as many judgments in the same case.
As the demurrer, interposed by the defendants at the hearing in Sanford, and renewed here, does not “distinctly specify the grounds of objection to the complaint,” it might well have been disregarded (C. S., 512), or treated as a motion to dismiss (Elam. v. Barnes, 110 N. C., 73, 14 S. E., 621), from the refusal of which no appeal lies. Plemmons v. Improvement Co., 108 N. C., 614, 13 S. E., 188.
“A motion to dismiss for want of jurisdiction or because the complaint does not state a cause of action is not such a demurrer ore terms as will permit an appeal from its refusal.” Burrell v. Hughes, 116 N. C., 430, 21 S. E., 971; Joyner v. Roberts, 112 N. C., 111, 16 S. E., 917.
But .the demurrer was neither disregarded nor treated as a motion to dismiss. A formal judgment was entered overruling the demurrer, from which an appeal was prayed and allowed, and the case on appeal settled instanter by agreement. When this was done, it would seem the defendants were justified in assuming that their exceptions to the referee’s report would not be passed upon until their appeal from the judgment overruling the demurrer had been heard and determined. C. S., 655; Bohannon v. Trust Co., 198 N. C., 702, 153 S. E., 263; Pruett v. Power Co., 167 N. C., 598, 83 S. E., 830.
“While the Court has held that an appeal from an interlocutory order leaves the action for all other purposes in the court below, the decision is also to the effect that the disposition of the interlocutory order and all questions incident to and necessarily involved in the ruling thereon are carried by the appeal to the appellate court” — Hoke, J., in Combes v. Adams, 150 N. C., 64 (at page 71), 63 S. E., 186.
An appeal lies as a matter of right from a judgment overruling a-demurrer, unless the demurrer be regarded as frivolous (Joyner v. Fiber *255 Co., 178 N. C., 634, 101 S. E., 373), or treated as a motion, to dismiss. Enloe v. Ragle, 195 N. C., 38, 141 S. E., 477.
Tbe demurrer interposed in tbe instant case is bad both as to substance and form, but it was dealt with as bona fide and properly overruled. It appears, therefore, from tbe present state of tbe record, tbat tbe defendants are entitled to have tbeir exceptions to tbe referee’s report considered and ruled upon after this opinion has been certified to tbe Superior Court.
Tbe judgment confirming tbe report, pending tbe appeal from tbe order overruling tbe demurrer, will be stricken out, and tbe cause remanded for further proceedings as to justice appertains and tbe rights of tbe parties may require.
Error and remanded.