(Filed 26 September, 1956.)
Appeal and Error § 3—
An appeal will not lie from the overruling of a demurrer for misjoinder of causes or failure of the complaint to state facts sufficient to constitute causes of action, and an attempted appeal therefrom will be dismissed. Rule of Practice in the Supreme Court No. 4(a).
Johnson, J., not sitting.
Appeal by defendants from Froneberger, J.; Regular May Civil Term 1956 of Buncombe.
Civil action to have Brookside Avenue, as shown on the plat of the development and subdivision called Mountain View Development, which plat is recorded in Plat Book No. 2, p. 41, in the Register of Deeds’ Office of Buncombe County, declared a public street, and. that the defendants be required to remove the fence, or fences, they have erected across it obstructing plaintiffs’ right to use said avenue. -In their brief the plaintiffs assert that the allegations in their complaint as to the discontinuance of a permissive roadway across their property were never intended to allege a cause of action, but were a surplus embellishment-of their pleading. .
The-defendants demurred to the complaint thereto on three grounds: one, a defect of parties defendant; two, a misjoinder of -causes; and three, the complaint does not state facts sufficient to constitute a cause of action.
The demurrer was overruled, and the defendants appealed.
*524 Roy A. Taylor and Don C. Young for Plaintiffs, Appellees.
Harkins, Van Winkle, Walton & Buck for Defendants, Appellants.
Per Curiam.
This Court, after the first day of the Spring Term 1956, will not entertain an appeal “from an order overruling a demurrer except when the demurrer is interposed as a matter of right for misjoinder of parties and causes of action.” Rule 4(a) of the Rules of the Supreme Court, 242 N.C. 766. The demurrer here is not for a misjoinder of parties and causes. The defendants’ attempted appeal is dismissed by virtue of Rule 4(a).
Appeal dismissed.
Johnson, J., not sitting.