Benton v. Collins

• Decision Date: 26 October 1897
• Citation: 28 S.E. 59,121 N.C. 66
• Parties: BENTON v. COLLINS.
• Court: North Carolina Supreme Court

28 S.E. 59

121 N.C. 66

BENTON v. COLLINS.

Supreme Court of North Carolina

October 26, 1897

Appeal from superior court, Franklin county; Timberlake, Judge.

Action by W. A. Benton against Ruffin Collins. From an order granting a new trial as to one issue, defendant appeals. Dismissed.

An appeal from an order setting aside a verdict on one of several issues presented to the jury, and granting a new trial on that issue, is premature, and will be dismissed.

F. S. Spruill, W. B. Shaw, and T. W. Bickett, for appellant.

Charles M. Cooke, for appellee.

FAIRCLOTH, C.J.

A verdict was recorded on all the issues submitted. On motion of the plaintiff, the court set aside the verdict on the issue of damages, and awarded a new trial on that issue. The defendant excepted to this ruling and order, and appealed to this court. The appeal is premature. He should have noted his exception, and proceeded with the trial, and brought the whole case to this court on final judgment. This course would not affect any substantial right. This question has been so often decided as to need only a reference to Hilliard v. Oram, 106 N.C. 467, 11 S.E. 514, and the numerous cases cited. Appeal dismissed.