Martin v. Flippen

• Decision Date: 19 December 1888
• Citation: 101 N.C. 452,8 S.E. 345
• Court: North Carolina Supreme Court
• Parties: Martin v. Flippen et al.

8 S.E. 345

(101 N.C. 452)

Martin

v.Flippen et al.

Supreme Court of North Carolina

December 19, 1888

Appeal—Interlocutory Order—Procedure.

Defendants, in a processioning proceeding, cannot appeal from an interlocutory order to the effect that they are entitled to have the issue as to the location of the boundary line tried by a jury. If they did not desire a trial by jury, they should have objected and assigned error, and made it a ground of appeal from the final judgment.

Appeal from superior court, Stokes county; Walter Clark, Judge.

This was a processioning proceeding to establish the line of certain land in dispute between Thomas Martin, trustee of Samuel M. Hughes, and James Flippen and Samuel Flippen. Defendants appeal from an order directing the issue of fact as to the location of the line to be tried by a jury.

Watson & Buxton and W. W. King, for appellants. Glenn & Glenn, for appellee.

Merrimon, J. This is a processioning proceeding. In the course of it the defendants, the appellants, made numerous objections and filed exceptions, all of which were overruled, and the court entered its findings and determination of record as follows: "This court finds that the plaintiff is the party in interest; that there was no misconduct on the part of the jury, and no irregularity in the proceedings to justify the motion to quash the proceedings, and the motion to quash is denied. The court being of opinion, however, that under the constitutional provision guarantying the right of trial by jury, and also under sections 256 and 1930 of the Code, the defendant is entitled to have the issue of fact as to the location of the line passed upon by a jury, an issue to that effect will be submitted to a jury in this court. " From this order the defendants appealed to this court. The court was of opinion that the appellants were entitled to a trial by jury as to the location of the boundary line in question, and directed that a proper issue for that purpose be submitted. The appellants did not object and waive any such right they might possibly have, and insist upon their objections to the proceeding, and their exceptions to the report of the freeholders, and a final judgment in their favor or against them, as they might have done. No final judgment was given, nor was there any interlocutory order or determination that put an end to the proceeding, or that could destroy or seriously impair some substantial right of the appellants, if the appeal should be delayed until...