(after stating the case). The plaintiffs were entitled to judgment against Coleman Foster, and there was error in refusing it.
The motion for judgment against Samuel Foster was predicated upon the insufficiency of his answer and was in the nature of a demurrer thereto. Being refused, the plaintiffs’ exception should have been noted and the action tried upon the issues raised by the complaint and answer, as it may have resulted that after the trial, no appeal would have been necessary. In this respect the appeal was premature, and, as no substantial right could have been lost to the plaintiff by the delay, upon the refusal of motion, the trial should have been proceeded with to a final judgment upon all the issues involved, and thus rendering only one appeal necessary.
Since the doubt expressed in The Commissioners of Wake v. Magnin, 78 N. C., 181, whether an appeal could be entertained by this Court under a proper construction of § 548 of The Code, (C. C. P., § 299,) except from a judgment which determined the action or affected some substantial right, it has been repeatedly held that appeals will not be entertained from orders or judgments disposing of fragmentary parts of the action, but that exceptions might be taken to such orders or judgments and reserved to be passed upon, if necessary,, after “ trial upon all the issues raised by the pleadings accord*258ing to the regular practice of the Court; and if the Court should have erred in its judgment or any of its rulings, then to have brought up the whole case by appeal, that its decisions upon questions of law, involved and controverted, might be finally adjudicated.” Hines v. Hines, 84 N. C., 122; Commissioners v. Satchwell, 88 N. C., 1; Grant v. Reese, 90 N. C., 3; Arrington v. Arrington, 91 N. C, 301; Emery v. Hardee, 94 N. C., 787; and many similar cases.
The appeal must be dismissed and the cause proceeded with below as if no appeal had been attempted. To that end let this be certified.
Dismissed.