White v. Utley

• Decision Date: 28 February 1886
• Citation: 94 N.C. 511
• Court: North Carolina Supreme Court
• Parties: SAMUEL C. WHITE, Cashier v. M. E. UTLEY, et als.

94 N.C. 511

SAMUEL C. WHITE, Cashier

v.M. E. UTLEY, et als.

Supreme Court of North Carolina.

February Term, 1886.

Motion in a cause, heard before Clark, Judge, at August Term, 1885, of the Superior Court of WAKE county.

After the dismissal of the former appeal of the plaintiff, for the reason that it was prematurely taken, in the midst of an unexecuted order of reference, 86 N. C., 415, the cause was recommitted to the same referee, and he was directed to proceed under the former order. The general facts are stated in the report in that appeal, and do not require repetition.

John G. Williams, the president of the bank, and trustee in the conveyance made by the defendant William Utley, in June, 1869, of two tracts of land, and a considerable personal estate, to secure money borrowed of the bank, died in February, 1879, and at the instance of E. R. Stamps, who was brought into the cause by a supplemental complaint, in which it is alleged that he had purchased the equity of redemption in the lands, under an execution sale against the defendant William Utley, the heirsat-law of the deceased, of whom the wife of said Stamps was one, were made parties defendants also, and filed their answer in 1885. This was done before the referee, and without objection. While the matter was pending before the referee, the plaintiff objected to the taking of the account of the administration of the trust fund by the deceased, because his personal representatives were not parties. Thereupon, the defendant William Utley, asked leave of the referee to make the representatives parties. The referee declined to give leave, for an alleged want of power, and certified the application to the Superior Court for its action. It was there allowed, the plaintiff's motion for judgment refused, and from these rulings the plaintiff again appealed.

Mr. D. G. Fowle, for the plaintiff .

Messrs. J. A. Williamson and E. C. Smith, for the defendants .

SMITH, C. J. (after stating the facts).

There is no reason for entertaining the present appeal, which did not apply to the other appeal. The matter is before the referee, undisposed of, and the proposed introduction of the executors of the deceased, was in furtherance of its essential object, a full and final determination of the controversy. We reiterate what was before said, when the cause was in this Court:

“The inconvenience of a partial adjudication, followed by an appeal, and this from time to time repeated, so as to present for review successively, fragments of the case, instead of the case in its entirety, are numerous, and inconsistent with the...