Gilliam v. . Jones

Supreme Court of North Carolina

Gilliam v. . Jones

132 S.E. 566, 191 N.C. 621, 1926 N.C. LEXIS 137

CourtSupreme Court of North Carolina

DecidedApril 21, 1926

StatusPublished

Cited by8 cases

This text of 132 S.E. 566 (Gilliam v. . Jones) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Gilliam v. . Jones, 132 S.E. 566, 191 N.C. 621, 1926 N.C. LEXIS 137 (N.C. 1926).

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Opinion

Brogden, J.

This appeal must be dismissed for the reason that the denial of a motion for judgment on the pleadings is not appealable, there being no final judgment. It was the duty of the plaintiff, under the practice, to have excepted to the refusal of the judge to grant the motion, so that it could have been considered on an appeal from a final judgment. Mitchell v. Kilburn, 74 N. C., 483; Walker v. Scott, 106 N. C., 56; Cameron v. Bennett, 110 N. C., 277; Cooper v. Wyman, 122 N. C., 784; Duffy v. Meadows, 131 N. C., 31; Barbee v. Penny, 174 N. C., 571; Duffy v. Hartsfield, 180 N. C., 151; Pender v. Taylor, 187 N. C., 250.

It will be observed that in some of the cases, although the court dismissed the appeal for the reasons given, still an opinion was expressed as to the merits of the controversy where .such an opinion would terminate the litigation.

This is not such a case. In the complaint the plaintiff alleges that she is entitled to a sum of money equivalent to the extent of her insurable interest in said residence, alleging in substance, that she paid the *623 premiums and that the contract of insurance was for her benefit. This is denied by the defendants. In addition, no reference is made to the policy of insurance, and it does not appear how the policy was written; so that any opinion by this Court, in the present state of the record, would be a mere “leap in the dark.”

Appeal dismissed.

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Brogden, J.

This appeal must be dismissed for the reason that the denial of a motion for judgment on the pleadings is not appealable, there being no final judgment. It was the duty of the plaintiff, under the practice, to have excepted to the refusal of the judge to grant the motion, so that it could have been considered on an appeal from a final judgment. Mitchell v. Kilburn, 74 N. C., 483; Walker v. Scott, 106 N. C., 56; Cameron v. Bennett, 110 N. C., 277; Cooper v. Wyman, 122 N. C., 784; Duffy v. Meadows, 131 N. C., 31; Barbee v. Penny, 174 N. C., 571; Duffy v. Hartsfield, 180 N. C., 151; Pender v. Taylor, 187 N. C., 250.

It will be observed that in some of the cases, although the court dismissed the appeal for the reasons given, still an opinion was expressed as to the merits of the controversy where .such an opinion would terminate the litigation.

This is not such a case. In the complaint the plaintiff alleges that she is entitled to a sum of money equivalent to the extent of her insurable interest in said residence, alleging in substance, that she paid the *623 premiums and that the contract of insurance was for her benefit. This is denied by the defendants. In addition, no reference is made to the policy of insurance, and it does not appear how the policy was written; so that any opinion by this Court, in the present state of the record, would be a mere “leap in the dark.”

Appeal dismissed.

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Bluebook (online)

132 S.E. 566, 191 N.C. 621, 1926 N.C. LEXIS 137, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gilliam-v-jones-nc-1926.

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