Parker v. Helms

56 S.E.2d 659, 231 N.C. 334, 1949 N.C. LEXIS 529

• Court: Supreme Court of North Carolina
• Decided: December 14, 1949
• Status: Published

Opinion

Ervin, J.

The issues of fact arising on the pleadings in regard to the existence of contracts entitling plaintiff to compensation in addition to the weekly salary were answered by the jury in favor of the plaintiff. The vérdict thus established the right of the plaintiff to an accounting in respect to the extra compensation, and the court was empowered to order a compulsory reference to hear and determine that matter by the statutory provision authorizing such action “where the trial of an issue of fact requires the examination of a long account on either side.” G.S. 1-189.

The order directing the compulsory reference to state the account leaves something more to be done in the case. This being so, it is interlocutory, and not appealable. McIntosh: North Carolina Practice and Procedure in Civil Cases, section 616. The reference should proceed. After the referee has made his report, and that has been passed on, and the final judgment has been rendered, any party aggrieved by the final judgment may appeal to this Court, and then obtain a review of all exceptions noted by him at any stage of the trial. Leroy v. Saliba, 182 N.C. 757, 108 S.E. 303; Waste Co. v. Mfg. Co., 168 N.C. 92, 83 S.E. 609; Richardson v. Express Co., 151 N.C. 60, 65 S.E. 616; Jones v. Wooten, 137 N.C. 421, 49 S.E. 915.

This ease is to be distinguished from those in which a compulsory reference is not authorized by law, 4 C.J.S., Appeal and Error, section 129; and from those in which an undetermined plea in bar precludes a reference. Lumber Co. v. Pemberton, 188 N.C. 532, 125 S.E. 119; Pritchett v. Supply Co., 153 N.C. 344, 69 S.E. 249.

Since the appeal of the defendants is premature, it must be dismissed.

Appeal dismissed.