Gray v. . Gaither

71 N.C. 55

• Court: Supreme Court of North Carolina
• Decided: June 5, 1874
• Status: Published

Opinion

Rodjiak, J.

The eases in which an appeal is allowed are stated in C. C. P., sec. 299. “ An appeal may be taken from

every judicial order or determination of a Judge of a Superior Court upon or involving a m.atter of law or legal inference, whether made in or out of term which affects a substantial right claimed in any action or proceeding,” <fcc.

The present case fails to come within this liberal rule in two respects. 1. The order of the Judge does not involve any matter of law. 2. It does not affect any substantial right.

The order determines nothing. It is merely in the nature of a notice to appear and show cause why an order for the appointment of a receiver should not be made. There was no necessity for having such an order sanctioned by a Judge. A notice from the plaintiff that on a certain day he would move for an order, &c., would have been sufficient. It is contended that the rule or order which the Judge made amounted to a determination by him that upon the case which the plaintiff then presented, and unless the defendant could show cause to the contrary, he would make the final order desired. We do not so consider it. As the plaintiff himself could have given a sufficient notice, it would probably have been best for the Judge to have abstained from giving his unnecessary sanction. But that the notice is directed by the Judge does not alter its character. It remains merely a notice, and affects no right of either party unless the Judge on the return day shall make some other order.

Pee CueiAM. Appeal dismissed.