Moore v. Rowland Lumber Co.

63 S.E. 953, 150 N.C. 261, 1909 N.C. LEXIS 38

• Court: Supreme Court of North Carolina
• Decided: March 10, 1909
• Status: Published

Opinion

Brown, J.

An appeal will not lie to this Court from an interlocutory judgment of this character. The damages should have been assessed and a final judgment rendered, to the end that all assignments of error on each issue, including the issue of damage, based on exceptions taken during the trial, may be considered and determined upon one appeal.

As the parties desire to have the matter determined, we have examined the assignments óf error and find nothing in the record which warrants a new trial upon the three issues already determined.

A careful examination of the special proceeding under which the timber was sold to defendant by the commissioner, Pair-cloth, discloses nowhere that the plaintiffs above named were made parties thereto or even referred to as such in the ex parte petition or in any order or decree of sale. The names of John B. Moore, Henry P. Moore and Walter L. Moore are mentioned in section 5 of the petition, but not as parties to the proceeding.

It being admitted that they were of age at the time said proceeding was commenced, it is settled that they are not bound by the decree unless they were parties to it or in some way had ratified and confirmed the sale.

•Inasmuch as these plaintiffs are nowhere referred to as parties in the proceeding, judgment or decree in the special proceeding, the case cannot be brought within the principle of Harrison v. Hargrove, 120 N. C., 97.

Tbe court acquired no jurisdiction over these plaintiffs as parties, nor was there any appearance by counsel for them, as in England v. Garner, 90 N. C., 198. As to them, the entire proceeding is void upon its face. Harrison v. Iiargrove, supra.

The matters presented by the three issues are purely of fact, upon which there was conflicting evidence, and we find no error in his Honor’s charge upon them. As .to the exception to his Honor’s refusal to set aside the findings of the jury as being against the weight of the evidence, we have frequently said that this court will not interfere, except where there is a gross abuse of discretion apparent in the record.

No Error.