Pritchard v. Panacea Springs Co

• Decision Date: 03 November 1909
• Citation: 65 S.E. 968,151 N.C. 249
• Parties: PRITCHARD et al. v. PANACEA SPRINGS CO. et al.
• Court: North Carolina Supreme Court

65 S.E. 968

151 N.C. 249

PRITCHARD et al.

v.PANACEA SPRINGS CO. et al.

Supreme Court of North Carolina.

Nov. 3, 1909.

Appeal and Error (§ 80^*)—Decisions Reviewable—Finality—Pendency of Reference.

Where a reference has beet entered upon, it must proceed to its proper conclusion, and an appeal will only lie from a final judgment or one in its nature final.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 429; Dec. Dig. § 80.*]

Appeal from Superior Court, Warren County; Guion, Judge.

Action by M. J. Pritchard and others against the Panacea Springs Company and others. From a judgment modifying the referee's report, Pritchard and others appeal. Appeal dismissed.

Gay & Midyette and Walter Clark, Jr., for appellants.

S. G. Daniel, T. M. Pittman, Tasker Polk, and Green & Boyd, for appellees.

HOKE, J. This was an action to wind up an insolvent corporation, or one threatened with insolvency, and make distribution of the assets. A receiver was duly appointed to preserve the property pending litigation, and the cause was referred to ascertain and declare the indebtedness and determine the amount and priority of certain liens, &c. The referee having made report, exceptions were filed, and on the hearing the court overruled some of the exceptions, sustained oth-ers, in whole or in part, and entered judgment modifying the report accordingly and making distribution of a large part of the assets, according to the rights of the parties as established by the judgment. The judgment then concludes as follows: "Upon motion of Gay & Midyette, attorneys for excepting creditors, it is ordered that as to the claim of Royal & Borden the cause is recommitted to T. T. Hicks, Esq., referee, to hear such further evidence as the parties may offer thereon, and to make his further findings of facts and conclusions of law thereon in respect of said claims to the next term of this court."

In this condition of the record, and on the facts indicated, the court is of opinion that the appeal has been prematurely taken, and that the same must be dismissed without prejudice. It has been the uniform ruling of this court that when a reference has been entered upon it must proceed to its proper conclusion, and that an appeal will only lie from a final judgment or one in its nature final. Brown v. Nimocks, 126 N. C. 808, 36 S. E. 278; Driller Co. v. Worth, 117 N. C. 515, 23 S. E. 427; Hailey v. Gray, 93 N. C. 195. If a departure from this procedure is allowed in one case, it could be...