Mitchell v. . Kilburn

74 N.C. 483

• Court: Supreme Court of North Carolina
• Decided: January 5, 1876
• Status: Published

Opinion

ByNüm, J.

The appeal was premature, and should not have been allowed, from a mere motion to dismiss the case. "When his Honor 'denied the motion to dismiss, he should have proceeded with the trial, leaving the parties to save their rights by exception, as well to the refusal to dismiss, as to the admission or rejection of evidence, which might have been offered in the progress of the trial, in support of the petition. So that when, the final judgment was rendered, the appeal would property present to this court the grave questions raised below, both as to the constitutionality of the act of 1874-75, chap-120, and the construction to be placed upon its provisions.

The appeal, having been improvidently granted, must be dismissed. C. C. P., sec. 299; Child v. Martin, 68 N. C. Rep., 307; Gray v. Gaither, 71 N. C. Rep., 51.

Pkk Curiam. Appeal dismissed.