Sneeden v. Harris

• Decision Date: 18 November 1890
• Citation: 12 S.E. 205,107 N.C. 311
• Parties: SNEEDEN v. HARRIS et al.
• Court: North Carolina Supreme Court

12 S.E. 205

107 N.C. 311

SNEEDEN v. HARRIS et al.

Supreme Court of North Carolina

November 18, 1890

Appeal from superior court, New Hanover county; J. G. BYNUM, Judge.

On the 5th of April, 1888, the plaintiff brought this action against two of the defendants, George Harris and Henry P. West. On the 6th of April, 1889, without leave of the court, he caused a summons to be issued making the appellant D. L. Russell a party defendant with the defendants at first made such. At the spring term, 1889, on a day in the term, the court made an order discontinuing the action as to the appellant. At the same term, on the next day, that order was stricken out, and the appellant was notified to show cause why he should not be made a defendant. At the September term of the same year, the court allowed the motion to make appellant Russell a party defendant, and allowed the plaintiff 30 days within which to file his complaint, and the defendant appellant 60 days within which to file his answer. The appellant contended that this was but an allowance to the plaintiff to make him a defendant; that the summons issued theretofore as to him was void; and the plaintiff would have to issue another summons as to him, returnable to the next term. Plaintiff insisted that the appellant was in court under the summons issued, and the notice to show cause, and that this was the appearance term. The court held, as a matter of law, and not as matter of discretion, that this was the appearance term, and ordered the pleadings to be filed as to this term. The appellant excepted, and appealed to this court.

An appeal will not lie from an interlocutory order making appellant a party defendant.

Iredell Meares, for respondent.

S. C. Weill, for appellant.

MERRIMON, C.J., (after stating the facts as above.)

The facts stated above appear only from what purports to be the case settled on appeal in a case therein mentioned. There is no transcript of a record proper. It does not appear that a court was held at the time and place prescribed by law; no summons nor pleadings appear; there is no transcript of the record of an action in the superior court. Moreover, if a proper transcript appeared, the supposed appeal was taken from an interlocutory order from which an appeal at once did not lie. The appellant should have assigned error on the record, and appealed from a final judgment. The appeal must be dismissed. It is so ordered.