Blackwell v. Mccain

• Decision Date: 21 April 1890
• Citation: 105 N.C. 460,11 S.E. 360
• Parties: Blackwell. v. McCain.
• Court: North Carolina Supreme Court

11 S.E. 360

105 N.C. 460

Blackwell.

v.McCain.

Supreme Court of North Carolina.

April 21, 1890.

Appeal—Final Order.

1. An interlocutory order, after verdict and before judgment, directing the clerk to take and state an account, is not appealable.

2. An appeal from such order does not bring up for review the exceptions taken at the trial.

Appeal from superior court, Durham county; Bynum, Judge.

Suit by W. T. Blackwell against W. B. McCain for $2,155, being the price of certain horses and mules sold to him, and also for the value of certain feed, stabling, and care furnished by plaintiff to the defendant. The jury found specially that the horses were sold and delivered, and that the feed, etc., was furnished. An order was then made referring the cause to the clerk of the court " to ascertain and report what part of said purchase price is unpaid, and what is the reasonable value of the feed, stabling, and attention, " etc. From this order the defendant appealed.

W. W. Fuller and J. W. Graham, for plaintiff.

W. A. Guthrie, for defendant.

Merrimon, C. J. Numerous issues raised by the pleadings were submitted to a jury, and they rendered their verdict. The court did not proceed to give judgment thereupon, or give any final judgment; but, deeming an account necessary, it made an orderd directing the clerk to take and state such account. No exception was taken to this order by either party, but the defendant appealed from it to this court.

The appellant mistakes the purpose and scope of this appeal when he supposes that it brings to this court his exceptions taken on the trial in the court below. It brings here for review only the interlocutory order appealed from, and as to that there was no exception or assignment of error. The court gave no judgment upon the verdict, or any final judgment; and therefore the exceptions taken on the trial are not brought up. They can only reach this court, in the orderly course of procedure, by an appeal from a final judgment. In the absence of exception to the order, if the appeal were properly taken at the present stage of the action, this court could only affirm it. But the appeal was prematurely taken. The order complained of was interlocutory. It did not put an end to the action, nor would the appellant be deprived of any substantial right, or seriously prejudiced, by delaying his appeal until the final judgment. He might have excepted to the order, and had his exception noted in the record; and a single appeal from the final judgment would bring up all his exceptions together. It is objected that if this court should sustain the exceptions in such case the trouble and cost of taking the account would go for naught; and so it would, at the costs of the appellee. But such and like annoyances and inconveniences are part of the essential incidents that sometimes happen in the course of a litigation. They are more tolerable, and less costly in time and money, than to allow appeals from every interlocutory order of which a captious party might complain. To establish the rule of procedure and practice whereby the...