168 S.E. 675 | N.C. | 1933
This is an action to foreclose a mortgage executed by the defendant to secure his note payable to the plaintiff, Daisy V. Koonce.
Pursuant to a judgment and decree rendered in the action at December Term, 1931, of the Superior Court of Carteret County, and in obedience to an order made by the clerk of said court, for a resale, under the provisions of N.C. Code of 1931, section 2591, the commissioners appointed by the court advertised the land described in the mortgage for sale on 3 January, 1933. *431
On 29 December, 1932, on the motion of the defendant, an order was made in the action by Judge Frizzelle, at his Chambers, in Snow Hill, N.C. by which the commissioners were restrained from selling the land on 3 January, 1933, or thereafter pending an appeal by the defendant from an order made by Judge Harris, at December Term, 1932, of the Superior Court of Carteret County. This order was dissolved and vacated by Judge Frizzelle, at his Chambers, in Snow Hill, N.C. on 2 January, 1933.
The commissioners offered the land for sale on 3 January, 1933, pursuant to their advertisement, and thereafter filed with the court their report of said sale. The action is now pending in the Superior Court of Carteret County, before the judge, on exceptions filed to said report. These exceptions have not been considered or passed upon by the judge of the Superior Court of Carteret County.
The defendant appealed from the order of Judge Frizzelle, dated 2 January, 1933, to the Supreme Court. This appeal must be dismissed. The question as to whether there was error in the order of Judge Frizzelle dated 2 January, 1933, is now academic. It appears from the record filed in this Court that after the order signed by Judge Frizzelle on 29 December, 1933, was dissolved and vacated by him on 2 January, 1933, the commissioners offered the land for sale on 3 January, 1933, and thereafter filed with the court a report of said sale. The action is now pending in the Superior Court of Carteret County, before the judge, on exceptions duly filed to said report.
The appeals from the order of Judge Moore, at October Term, 1932, and from the order of Judge Harris, at December Term, 1932, of the Superior Court of Carteret County, are premature. These orders are interlocutory. There has been no final judgment in the action, confirming the sale of the land described in the mortgage. Until such judgment has been rendered, this Court will not consider or pass upon the questions of law discussed on the argument and in the briefs filed on this appeal. See, however, the opinion filed this day in the appeal by the plaintiffs in this action. (Koonce v.Fort, ante, 426.)
Appeal dismissed. *432