Wallace v. Douglas

• Decision Date: 31 March 1890
• Citation: 105 N.C. 42,10 S.E. 1043
• Court: North Carolina Supreme Court
• Parties: Wallace et al. v. Douglas.

10 S.E. 1043

(105 N.C. 42)

Wallace et al.

v.Douglas.

Supreme Court of North Carolina.

March 31, 1890.

Report op Referee—Exceptions—Appeal.

An appeal from an order sustaining an exception to a referee's report, and recommitting the case to the referee to take further evidence, is premature, and will be dismissed.

(Syllabus by the Court.)

Appeal from superior court, Iredell county; Connor, Judge.

C. H. Armfield, for appellants. W. M. Robbins, for appellee.

Clark, J. The defendant, among other exceptions, excepted to certain evidence admitted by the referee. The court sustained the exception. The case, on appeal, then states: "This testimony being excluded for the foregoing reasons, the plaintiffs insisting that there is other testimony tending to sustain the findings of the referee, it is considered that the said report be recommitted to said referee, to the end that he may pass upon said testimony; and, if in his discretion he deems it in furtherance of justice, permit the plaintiffs to introduce other competent testimony. From this judgment the plaintiffs apealed to the supreme court. " The appeal was premature and improvidently taken, and must be dismissed. The plaintiffs should have had their exception noted in the record, and if on the coming in of the amended report, and a final judgment thereon, they find it necessary to appeal, the exception will then be reviewed. It may be that, as they themselves suggest, other evidence may be found to supply the place of that excluded, or when the final judgment is rendered they may not desire to appeal. The court will not take "two bites at a cherry. " The rule of practice is settled by so many decisions that weonly refer to Jones v. Call, 89 N. C. 188; Torrence v. Davidson, 90 N. C. 2; Lutz v. Cline, 89 N. C. 186; Grant v. Reese, 90 N. C. 3; Leak v. Covington, 95 N. C. 193. In Grant v. Reese, just cited, the court say: " Slight attention to the decisions of the court would prevent miscarriages like the present, and facilitate the administration of justice."

Appeal dismissed.