Monroe v. . Holder

108 S.E. 359, 182 N.C. 79, 1921 N.C. LEXIS 179

• Court: Supreme Court of North Carolina
• Decided: September 28, 1921
• Status: Published

Opinion

Stacy, J.

It appearing tbat tbe order of examination, as entered by tbe clerk and approved by tbe judge, is based upon an affidavit, apparently sufficient in form and substance, and there being no denial ■of tbe facts or contrary showing by tbe defendant, we must dismiss tbe appeal as premature. Pender v. Mallett, 122 N. C., 163; Holt v. Warehouse Co., 116 N. C., 480; Vann v. Lawrence, 111 N. C., 32.

It is true, in Ward v. Martin, 175 N. C., 287, tbe Court, in its discretion, entertained an appeal from an order of tbis kind, because of tbe important questions presented; but in tbe instant case it does not appear tbat tbe .defendant will be prejudiced or injured by tbe examination.

Of course, as said in Bailey v. Matthews, 156 N. C., 81, and repeated in Fields v. Coleman, 160 N. C., 11, “Tbe law will not permit a party to spread a drag-net for bis adversary in tbe suit in order to gather facts upon wbicb be may be-sued, nor will i't countenance any attempt, under tbe guise of a fair examination, to harass or oppress bis opponent.” But these are matters wbicb, in tbe first instance, must be committed to tbe wisdom and good judgment of those who grant tbe orders and supervise their execution. Until some right is denied or some wrong is done, tbe defendant should not be permitted to appeal, and thus delay tbe trial of tbe cause. Holt v. Warehouse Co., supra.

Appeal dismissed.