Johnson v. Pilot Life Insurance
1 S.E.2d 381
N.C.
1939
Check Treatment
Stacy, C. J.

It appears that in the Superior Court an effort was made to have the issue raised by defendant’s plea of the statute of limitations, C. S., 441, “finally determined in advance of the trial” upon the complaint, answer, and “stipulations filed by the parties.” To this end, the defendant sought to terminate the action by motion to dismiss, Batson v. Laundry, 206 N. C., 371, 174 S. E., 90, albeit the burden was on the plaintiff to show that he had brought a live claim to court. Allsbrook v. Walston, 212 N. C., 225, 193 S. E., 151. From a denial of the motion, the defendant appeals.

It is not clear upon what theory the motion was ruled, i.e., whether the issue was finally determined or the “evidence” merely held sufficient to preclude a nonsuit. See Dix-Downing v. White, 206 N. C., 567, 174 S. E., 451; Rogers v. Bailey, 209 N. C., 849, 184 S. E., 48. Without *122 this knowledge, any expression of opinion might prove unwise. Richardson v. Express Co., 151 N. C., 60, 65 S. E., 616. Perhaps neither side would want to risk the issue upon the record as it now stands. However this may be, it is manifest that the appeal is fragmentary or premature and must be dismissed under the uniform decisions on the subject. Capps v. R. R., 182 N. C., 758, 108 S. E., 300; Tates v. Ins. Co., 176 N. C., 401, 97 S. E., 209. There are other issues yet to be determined. Joyner v. Reflector Co., 176 N. C., 274, 97 S. E., 44. A fragmentary appeal is one which seeks to bring up only a part of the case, leaving other parts of it unsettled. Hinton v. Ins. Co., 116 N. C., 22, 21 S. E., 201; McIntosh N. C. Prac. & Proc., 776.

No appeal lies from a refusal to dismiss an action. Goldsboro v. Holmes, 183 N. C., 203, 111 S. E., 1; Farr v. Lumber Co., 182 N. C., 725, 109 S. E., 383; Goode v. Rogers, 126 N. C., 62, 35 S. E., 185. In such case there is no judgment—only the refusal of a judgment. Bradshaw v. Bank, 172 N. C., 632, 90 S. E., 789. Of course, if the motion had been allowed and the action dismissed, the plaintiff could not have proceeded in the court below, and in that event an appeal by the plaintiff would have been in order. Royster v. Wright, 118 N. C., 152, 24 S. E., 746. Such a ruling would have been just the reverse of the one we are now considering. Batson v. Laundry, supra.

The reason no appeal lies from a refusal to dismiss is that it does not come within the purview of the statute, C. S., 638, permitting appeals. Thomas v. Carteret County, 180 N. C., 109, 104 S. E., 75; Chambers v. R. R., 172 N. C., 555, 90 S. E., 590; Corporation Com. v. Mfg. Co., 185 N. C., 17, 116 S. E., 178. Moreover, if a departure be allowed in one case, it could be insisted on in another, and each litigant, conceiving himself to be aggrieved, could appeal and thus prolong litigation until it might become intolerably burdensome. Capps v. R. R., supra; Beck v. Bank, 157 N. C., 105, 72 S. E., 632; Pritchard v. Spring Co., 151 N. C., 249, 65 S. E., 968; Martin v. Flippin, 101 N. C., 452, 8 S. E., 345. See collection of authorities in opinion of Clark, C. J., in Williams v. Bailey, 177 N. C., 37, 97 S. E., 721.

“It is only when the judgment or order appealed from in the course of the action puts an end to it, or may put an end to it, or has the effect-to deprive the party complaining of some substantial right, or will seriously impair such right if the error shall not be corrected at once, and before the final hearing, that an appeal lies before final judgment.” Merrimon, J., in Leak v. Covington, 95 N. C., 193.

Again in Hosiery Mill v. Hosiery Mills, 198 N. C., 596, 152 S. E., 794, Connor, J., delivering the opinion of the Court, said: “Ordinarily, no appeal lies to this Court from an interlocutory order made in an *123 action pending therein by tbe Superior Court. An exception to tbe order, taken in apt time, will be considered on an appeal from tbe final judgment in tbe action, wben such exception is duly presented on said appeal. If, however, an interlocutory order affects a substantial right of a party to tbe action, and is prejudicial to such right, be may appeal therefrom to this Court, and bis appeal will be beard, and decided on its merits. Skinner v. Carter, 108 N. C., 106, 12 S. E., 908. If the order does not affect a substantial right of tbe appellant, bis appeal therefrom to this Court will be dismissed. Warren v. Stancil, 111 N. C., 112, 23 S. E., 216; Leak v. Covington, 95 N. C., 194.” See Smith v. Miller, 155 N. C., 242, 71 S. E., 353; Cement Co. v. Phillips, 182 N. C., 437, 109 S. E., 257; Leroy v. Saliba, ibid., 757, 108 S. E., 303.

It may not be amiss to observe that we are not dealing with a juris-dictionál question, Denton v. Vassiliades, 212 N. C., 513, 193 S. E., 737, nor one of estoppel, Yerys v. Ins. Co., 210 N. C., 442, 187 S. E., 583, Buchanan v. Oglesby, 207 N. C., 149, 176 S. E., 281, nor one where some fatal defect appears on tbe face of tbe record, Dunn v. Wilson, 210 N. C., 493, 187 S. E., 802, nor yet with a motion to strike, Patterson v. R. R., 214 N. C., 38, 198 S. E., 364.

We may also add that tbe motion to dismiss was not treated as a request for a separate trial on tbe issue raised by tbe plea in bar. Nor was it so intended. Bethell v. McKinney, 164 N. C., 71, 80 S. E., 162; Royster v. Wright, supra.

Appeal dismissed.