Whitaker v. . Dunn

29 S.E. 54, 122 N.C. 103, 1898 N.C. LEXIS 201

• Court: Supreme Court of North Carolina
• Decided: February 22, 1898
• Status: Published

Opinion

Clark, J.:

This action was begun before a Justice of the Peace to obtain possession of certain personal property. On appeal in the Superior Court the defendant moved to dismiss because the summons did not state the value of the property, which was refused, and the plaintiff’s motion to amend by inserting $32, as the value was granted. The defendant appealed. The appeal is premature as to the refusal to dismiss. Lowe v. Accident Association, 115 N. C., 18; Plemmons v. Improvement Co., 108 N. C., 614. An order allowing an amendment is ordinarily not appealable (Goodwin v. Fertilizer Works, 121 N. C., 91) but if it had been ap-pealable the proper course was to note the exception and appeal from the final judgment. For these reasons the appeal must be dismissed, but it is not improper to say that the amendment having the effect to show, and not to confer, jurisdiction was properly allowed. McPhail v. Johnson, 115 N. C., 298, and cases there cited; Gillam v. Ins. Co., 121 N. C., 369.

Appeal dismissed.