Perkins v. Sykes

Supreme Court of North Carolina

Perkins v. Sykes

57 S.E.2d 645, 231 N.C. 488, 1950 N.C. LEXIS 469

CourtSupreme Court of North Carolina

DecidedMarch 1, 1950

Docket738

StatusPublished

Cited by6 cases

This text of 57 S.E.2d 645 (Perkins v. Sykes) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Perkins v. Sykes, 57 S.E.2d 645, 231 N.C. 488, 1950 N.C. LEXIS 469 (N.C. 1950).

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Opinion

Ervin, J.

The judgment adjudicates the issue raised by the defendant’s cross-action, i.e., the title to the real and personal property used in carrying on the business of the E. P. Sykes Motor Company. It also judicially declares the right of the plaintiff to have an accounting of the partnership affairs in conformity to the prayer of the third cause of action stated in the complaint. But it leaves the first and second causes of action set out in the complaint wholly untried, and postpones the actual taking of the account of the partnership affairs to a later occasion.

For these reasons, the judgment is a partial one, not disposing of the whole case. In consequence, the appeal is fragmentary and premature, and must be dismissed. Cole v. Trust Co., 221 N.C. 249, 20 S.E. 2d 54; Garland v. Improvement Co., 184 N.C. 551, 115 S.E. 164; Cement Co. v. Phillips, 182 N.C. 437, 109 S.E. 257; Hinton v. Ins. Co., 116 N.C. *491 22, 21 S.E. 201; McIntosh on North Carolina Practice and Procedure in Civil Cases, section 676 (7).

When the whole action is tried, an appeal will lie from the final judgment upon the whole controversy. Cement Co., v. Phillips, supra.

Appeal dismissed.

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Ervin, J.

The judgment adjudicates the issue raised by the defendant’s cross-action, i.e., the title to the real and personal property used in carrying on the business of the E. P. Sykes Motor Company. It also judicially declares the right of the plaintiff to have an accounting of the partnership affairs in conformity to the prayer of the third cause of action stated in the complaint. But it leaves the first and second causes of action set out in the complaint wholly untried, and postpones the actual taking of the account of the partnership affairs to a later occasion.

For these reasons, the judgment is a partial one, not disposing of the whole case. In consequence, the appeal is fragmentary and premature, and must be dismissed. Cole v. Trust Co., 221 N.C. 249, 20 S.E. 2d 54; Garland v. Improvement Co., 184 N.C. 551, 115 S.E. 164; Cement Co. v. Phillips, 182 N.C. 437, 109 S.E. 257; Hinton v. Ins. Co., 116 N.C. *491 22, 21 S.E. 201; McIntosh on North Carolina Practice and Procedure in Civil Cases, section 676 (7).

When the whole action is tried, an appeal will lie from the final judgment upon the whole controversy. Cement Co., v. Phillips, supra.

Appeal dismissed.

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Bluebook (online)

57 S.E.2d 645, 231 N.C. 488, 1950 N.C. LEXIS 469, Counsel Stack Legal Research, https://law.counselstack.com/opinion/perkins-v-sykes-nc-1950.

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