Walker v. . Reeves

80 S.E. 885, 165 N.C. 35, 1914 N.C. LEXIS 210

• Court: Supreme Court of North Carolina
• Decided: February 18, 1914
• Status: Published

Opinion

BbowN, J.

Tbe order of Judge Whedbee, referred to in tbe order of Judge Connor, is as follows:

“Tbis cause coming on to be beard on appeal from order signed by O. Y. W. Ausbon, clerk Superior Court, dated 20 February, 1913, it is considered and adjudged by tbe court that said clerk of court pass upon tbe affidavits filed in said cause, and that be bas jurisdiction to either allow said petitioners, represented by W. M. Bond, Sr., and W. M. Bond, Jr., to file objections and exceptions to preliminary report and final reports in .said action, and other orders therein, or to refuse to allow them'to file exceptions. In tbe event be shall order that objections and exceptions be filed, be shall fix a date and pass on said objections and exceptions which are-then filed. It is ordered that said clerk bear said matter on 13 May, 1913, at 4 o’clock, at bis office in Plymouth, N. 0.; and tbis appeal is remanded to him to bear and pass upon said matter. Tbis 23 April, 1913.”

No appeal was taken from tbis order. When tbe cause came again before tbe. clerk, be made an order “that said parties be allowed thirty days from 1 July, 1913,'within which to file said exceptions and _ answers, and that the defendants have thirty days thereafter to file answers thereto/ if they be so advised.”

We are of opinion that this appeal is premature, and must be dismissed.

It is plain that under the order of Judge "Whedbee, which was' not appealed from or even excepted to, and was therefore final, the clerk had the power to entertain and pass upon exceptions and to grant the .parties time within which to'file them.

It was the appellants’ duty, if dissatisfied, to except to the order of Judge Connor, and wait until after the exceptions were finally passed upon before .appealing to this Court.

It is possible the exceptions may be decided in defendants’ favor, and-then they would hot care to appeal.

Fragmentary appeals are not encouraged.

Appeal dismissed.