City of Goldsboro v. Holmes
| Decision Date | 22 March 1922 |
| Docket Number | 101. |
| Citation | 111 S.E. 1,183 N.C. 203 |
| Parties | CITY OF GOLDSBORO v. HOLMES ET UX. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Wayne County; Cranmer, Judge.
Proceeding by the City of Goldsboro against Thomas H. Holmes and wife. A judgment of voluntary nonsuit signed by the clerk was reversed by the judge, and plaintiff appeals. Appeal dismissed.
On November 17, 1919, the plaintiff made an order for the extension of Ash street, and thereafter instituted a proceeding for the condemnation of the defendant's property. On November 26, 1920, the clerk made an order condemning a strip of the defendant's land 50 by 420 feet, and appointed three commissioners to appraise the land and the benefits. On January 24, 1921, the commissioners made report assessing the defendant's damages at $35,000, and finding no special benefits. To this report no exceptions were filed. On March 7, 1921, without notice to defendant, the clerk, at the instance of the plaintiff, signed a judgment of nonsuit; and a few days afterward, upon learning of this judgment, the defendant made a motion before the clerk to set it aside. The motion was denied, and upon appeal his honor reversed the judgment signed by the clerk. From his honor's judgment, the plaintiff appealed. The plaintiff has not paid the damages assessed nor taken possession of the land.
An order of the judge reversing a judgment of voluntary nonsuit signed by the clerk was interlocutory, and not final, and would not support an appeal.
D. C. Humphrey, E. M. Land, and Dickinson & Freeman, all of Goldsboro, for appellant.
Langston, Allen & Taylor, of Goldsboro, for appellees.
The record presents an interesting and important question, but we are precluded from giving it consideration at this time. His honor's order was interlocutory, not final. The trial should determine all matters at issue, so that a final judgment may be rendered. An appeal that is fragmentary will not be entertained. In addition we have repeatedly held that no appeal lies from a refusal to dismiss an action or proceeding. Capps v. Railroad, 182 N.C. 758, 108 S.E. 300; Farr v. Lumber Co., 182 N.C. 725, 109 S.E. 833; Cement Co. v. Phillips, 182 N.C. 438, 109 S.E. 257. The appeal therefore must be dismissed.
Appeal dismissed.
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