Wallington v. . Montgomery

74 N.C. 372

• Court: Supreme Court of North Carolina
• Decided: January 5, 1876
• Status: Published

Opinion

ByNuíi, J.

The refusal of his Honor to pass upon the competency of the evidence and its materiality before the trial, was not the subject of appeal, any more than from his refusal to try or continue a cause, or from his order to allow or disallow an amendment. If in the course of a trial a question is objected to and ruled out by the court as irrelvant, or a witness is rejected as incompetent, an appeal cannot then be taken and the trial arrested, but exceptions are made and the trial progresses.

In the case before us, the appeal was taken on a ruling from which no appeal lay, even had it been made on the trial and in proper time, instead of in anticipation of a trial, when the court had no jurisdiction whatever to pass upon the objections. The court was right in refusing to decide at that time, but in «error in allowing the appeal.

An appeal can only be taken from “ a judicial order or determination of a Judge upon or involving a matter of law or legal inference, which affects a substantial right claimed in any action or proceeding, or which, in effect, determines the action and prevents a judgment from which an appeal might be taken, or discontinues the action or grants or refuses a new trial.” C. C. P., sec. 299. This was not such “ judicial order or determination ” as is embraced in the statute. Childs v. Martin, 68 N. C. Rep., 307; Gray v. Gaither, 71 N. C. Rep., 55. The appeal having been improvidently allowed, must be dismissed.

Pee CuRiam. Appeal dismissed.