Bazemore v. . Bridgers

10 S.E. 888, 105 N.C. 191

• Court: Supreme Court of North Carolina
• Decided: February 5, 1890
• Status: Published

Opinion

MerkjmoN, C. J.

after stating the case: This appeal was taken prematurely. The defendants should have had their exception noted in the record, and they might have had the benefit of it in an appeal from the final judgment. If, in that case, their exception should be sustained, they would then have the benefit of their counter-claim in the'eourse of the action and a trial upon its merits — otherwise, in the absence of other exceptions, the judgment would be affirmed and the action ended without the delay and expense occasioned by multiplied and unnecessary appeals in the same action 'It has been so repeatedly decided. State v. McDowell, 84 N C., 798; State v. Polk, 91 N. C., 652; Knott v. Burwell, 96 N. C., 272.

We are requested to express our opinion as to the merit of the single exception, and, as it may prevent another appeal, wo will do so. 'In our judgment the demurrer was properly sustained. It was contended, on- the argument, that the alleged counter-claim should be upheld as such, on the ground that it is “connected with the subject of the action.” This clearly cannot be so. The cause of action alleged in the complaint — in the language of the statute, (The Code, § 244, par. 1) — “ the subject of the action,” is not the land, but the alleged trespasses on it, and the cause of action— alleged indefinitely and imperfectly as a counter-claim — is in no way connected with them, so far as appears. What connection has the alleged interference of the plaintiffs with the mill-dam of the defendants to do with the trespass alleged in the complaint? We have not been told, and we cannot see that it has any whatever.

The appeal must be dismissed. Dismissed.