Richardson v. Southern Express Co.

65 S.E. 616, 151 N.C. 60, 1909 N.C. LEXIS 193

Opinion

MANNING, J.,

after stating the ease: Under the decision of this Court in Moore v. Lumber Co., 150 N. C., 261, this appeal must be dismissed, for an appeal will not lie from an interlocutory or a partial judgment of this character. The damages should have been assessed either by the jury or by the referee appointed by the court. If by the referee, he should have reported to the court, when a final' judgment-should have been rendered, and from which the defendant, having'entered and reserved his exceptions taken during the trial, could have prosecuted its appeal. This Court has uniformly enforced this rule of practice. Rogerson v. Lumber Co., 136 N. C., 266. While the counsel of both parties expressed their desire that this Court should pass upon the other questions presented by this appeal, we prefer to adhere to the rule enunciated in Hinton v. Ins. Co., 116 N. C., 22, and Milling Co. v. Finlay, 110 N. C., 411, to pass only upon the questions decisive of the appeal. In this case especially do we perceive no urgent reason for departing from this rule, as none of the evidence and no part of the judge’s charge is sent up, and we cannot see how fully the facts upon which the other question presented to us depends were developed. Upon the authority cited, the appeal is dismissed as premature.

Appeal dismissed.