Childs v. . Martin

68 N.C. 307

• Court: Supreme Court of North Carolina
• Decided: January 5, 1873
• Status: Published

Opinion

Rodman, J.

A brief statement of the proceedings in. this case will make our opinion intelligible.

On the 17th June, 1872, the plaintiff, Childs, issued a summons against numerous defendants, returnable to Fall Term of Mecklenburg Superior Court. On 22d June, Childs applied to the Judge of the Ninth District for an order restraining defendants from proceeding to foreclose a certain mortgage, and the Judge made the order restraining them, until further order. At the same time, he directed the defendants to be notified to appear before him on 12th July. On that day, the defendants moved to vacate the restraining order, and the plaintiffs moved for an injunction. The Judge refused both motions, and continued the hearing of the case and also the restraining order until 22d July. From this order the defendants appealed to this Court. In the view we take of the case the amendment of the complaint, by adding other plaintiffs, is immaterial.

The only question as we conceive, is, was the order of the Judge one from which the defendants could appeal ? The C. C. P. is liberal in giving the right to appeal. But it is of the nature of an appeal, that it must be from some determination, which affecis in whole or.in part the legal or actual merits of the controversy. It cannot be from a mere adjournment or continuance of an action, a mere postponement of a determination for a reasonable time, or for an unreasonable time, provided it be for one which must necessarily expire before the appeal can be heard in the appellate Court. Section 345 of the C. C. P. directs that a Judge in a case like this shall give* his judgment within ten days; in this case the postponement was slightly beyond that time. But the section must necessarily be held merely directory, from the impossibility of this Court’s giving any redress.

Per. Curiam.

Appeal dismissed.