Capps v. Atlantic Coast Line Railroad Co.

• Decision Date: 14 September 1921
• Docket Number: 65.
• Citation: 108 S.E. 300,182 N.C. 758
• Parties: CAPPS v. ATLANTIC COAST LINE R. CO. ET AL.
• Court: North Carolina Supreme Court

108 S.E. 300

182 N.C. 758

CAPPS v. ATLANTIC COAST LINE R. CO. ET AL.

No. 65.

Supreme Court of North Carolina

September 14, 1921

Appeal from Superior Court, Wilson County; Calvert, Judge.

Action by E. B. Capps, administrator of I. M. Williamson, against Walker D. Hines, Director General of Railroads, and the Atlantic Coast Line Railroad Company. Motion to dismiss overruled, and defendants appeal. Appeal dismissed.

F. S. Spruill, of Rocky Mount, and Carl H. Davis, of Wilmington, for appellants.

O. P. Dickinson, of Wilson, for appellee.

PER CURIAM.

The judgment appealed from is as follows:

"The motion to dismiss made by the defendant in his answer is hereby overruled; and the other matters and things set up in the pleadings are hereby continued for further consideration by the court."

The uniform decisions of this court have always been that "no appeal lies from a refusal to dismiss." McBryde v. Patterson, 78 N.C. 412, down to date, see cases cited under C. S. § 638, at page 278 of volume 1. If it were otherwise, the defendant in every case could always get from 6 to 12 months' delay by simply moving to dismiss and appealing from a refusal to do so.

It is useless to cite cases, for they are very numerous and without any exception. As this court has said (as to another point):

"There are some matters at least, which should be deemed settled and this is one of them." Burrell v. Hughes, 120 N.C. 279, 26 S.E. 782.

Appeal dismissed.