George E. Nissen Co. v. Nissen

153 S.E. 450, 198 N.C. 808, 1930 N.C. LEXIS 495

• Court: Supreme Court of North Carolina
• Decided: June 6, 1930
• Status: Published

Opinion

Per CueiaM.

The court below in its discretion allowed the plaintiff to amend its complaint. The defendant excepted, assigned error and appealed to this Court. We think the appeal premature and fragmentary.

C. S., 638: “An appeal may be taken from every judicial order or determination of a judge of a Superior Court, upon or involving a matter of law or legal inference, whether made in or out of term, which affects a substantial right claimed in any action or proceeding; or which in effect determines the action, and prevents a judgment from which an appeal might be taken; or discontinues the action, or grants or refuses a new trial.”

“The rule generally stated is that appeals are intended to present for review the whole ease, and a party can preserve his rights by taking exceptions and bringing them forward on final hearing, unless the order affects a substantial right which would be put in jeopardy by a delay.” McIntosh N. C. Prac. & Proc., p. 776. Smith v. Miller, 155 N. C., 242; Penn-Allen Cement Co. v. Phillips, 182 N. C., 437; Leroy v. Saliba, 182 N. C., 757; Contracting Co. v. Power Co., 195 N. C., 649; Hosiery Mill v. Hosiery Mills, ante, 596; Ellis v. Ellis, ante, 767.

In the present action the amendment to the complaint does not affect such a substantial right that defendant is allowed under the statute to appeal from. The defendant attempts to jump over the stile before he gets to it.

For the reasons given

Appeal dismissed.