Gill v. Smith, 233 N.C. 86 (1950)

Dec. 13, 1950 · Supreme Court of North Carolina

233 N.C. 86

EDWIN GILL, Commissioner of Revenue of the STATE OF NORTH CAROLINA, v. F. D. SMITH, Alias GEORGE SMITH and Wife, MRS. F. D. SMITH, J. B. WEBSTER, JR., and Wife, HELEN S. WEBSTER, and HUGER S. KING, Trustee.

(Filed 13 December, 1950.)

Appeal and Error § 2—

Tbe trial court overruled demurrer and, in tbe exercise of its discretion, allowed plaintiff time to amend tbe complaint. Defendants excepted and appealed. HelcL: Tbe exception is, in effect, to tbe refusal to dismiss the action, from which no appeal lies, and tbe appeal will be dismissed as premature.

Appeal by defendant from Bennett, Special Judge, March Term, 1950, Guilford.

Civil action to have defendant Smith declared the true owner of certain property, title to which is in the name of defendant J. B. "Webster, Jr., and to have same sold under execution to satisfy tax certificate judgment, heard on demurrer.

The defendants demurred to the complaint for that it fails to state a cause of action. The demurrer particularizes the alleged defects in the complaint. The court overruled the demurrer and, in the exercise of its discretion, allowed plaintiffs twenty days in which to file an amended complaint. Defendants excepted to that part of the judgment which allows plaintiff to amend and appealed.

Attorney-General McMullan, Assistant Attomeys-General Tuclcer and Abbott, and T. G. Hoyle, Jr., and George G. Hampton, Jr., for plaintiff, appellee.

Hughes & Hines and Welch Jordan for defendant appellants.

Per Curiam.

The order allowing time to amend had the effect of retaining the cause on the docket. So then, the taproot of defendants’ exception is the refusal to dismiss the action. But no appeal lies from a refusal to dismiss. Johnson v. Insurance Co., 215 N.C. 120, 1 S.E. 2d 381. The order entered was interlocutory and discretionary. G.S. 1-131, 162. That there was no motion to be allowed to amend, if such be required, is not made to appear. Teague v. Oil Co., 232 N.C. 469. Appeal therefrom was premature, Johnson v. Insurance Co., supra; Utilities Com. v. R. R., 223 N.C. 840, 28 S.E. 2d 490; Privette v. Privette, 230 N.C. 52, 51 S.E. 2d 925, and will be dismissed.

Appeal dismissed.