.This action was commenced on .the 3d of October, 1874. The original defendants were N. W. "Wood-fin, administrator of McDowell, R. M. Pearson, N. W. Woodfin, administrator of John W". Woodfin, аnd "W. P. McKesson. Pearson having died, his executor was made a party in this Court.
The complaint alleges in substance, that at Spring Term, 1869, of Burke Superior Court, the relatоr recovered a judgment against N. W. "Woodfin, administrator of McDow *5 ell, and that a part of it is still unpaid. That McDowell died in 1859 ; N. W. Woodfin was appointed his administrator, and gaye bond in the usual form with Pearson, Mc-Kesson, and John W. Woodfin, as his sureties. The,relatоr assigns as a breach, that N. W. Woodfin, the administrator, received a large amount of personal property, more than •sufficient to have paid all the debts of McDowell, and the costs of administration, and that he failed to,pay the debt to the relator, but delivered the property to the legatees without taking rеfunding bonds, to the damage of the relator, &c.
At Spring Term, 1875, N. W. Woodfin and Pearson filed seрarate.answers. The plaintiff replied. At Pali Term, 1875, the death of N. W. Woodfin was suggestеd, and it was ordered that notice issue to his administrator. At Spring Term, 1876, the administrator of N. W. Woodfin, and the administrator de bonis non ©f McDowell, were made parties. The plaintiff then by leаve of the Court amended the complaint by assigning as a further breach the nonpayment of the note upon which the aforesaid judgment was recovered. The note was dated the 28th of December, 1858, and payable one day after date.
At Fall Term, 1876, Pearson, not abandoning his answer, demurs to the amended complаint and alleges as ground, that John G-ray Bynum, the administrator de bonis non of McDowell, is the only proрer relator in an action on the administration bond of Woodfin, and the relatоr Craw-ley, cannot maintain the action. At a Special Term, in ' November, 1877, the defendant Pearson withdrew his demurer, and moved to dismiss the action, which motion was refused, and the defendants appealed to this Court.
It has been several times held in this Cоurt that no appeal will lie from the refusal of a motion to dismiss an action, or to non-suit a plaintiff.
Stith
v.
Lookabill,
71 N. C.
*6
25;
Foster
v.
Penry, 77
N. C. 160;
Mitchell
v.
Kilburn,
In those cases as in this, the counsel argued the cases upon their merits as appearing on the complaints, which might be deemed a wаiver of a right to dismiss the appeal on the ground' that no appeal would lie from such a refusal. But .the consent of the counsel cannot give this Court jurisdiction оf an appeal where it has none, or prevent the inconveniences of such a practice. It is dear that it is not one of the cases in which air appeal is allowed by C. C, P. § 299. The refusal affects no substantial right; the defences of the defendant are all as open .to him as they ever were. If appeals are allowed in such cases, litigation will be immensely protracted, and the costs increased. By a motion to dismiss, or to non-suit, the Court is asked to give an opinion upon a state of facts, which the defendant at the same time denies tо be true. A demurrer which pro hac vice, admits the facts alleged, is the only mode known to the law in which а judgment of a Court can be obtained upon the sufficiency in law of a comрlaint.
A Superior Court is not a mere moot Court to give opinions which have no practical effect. Its duty is to decide real controversies, and to give such judgments therein as may be enforced, thus doing practical work and ending litigation whiсh is always an evil.
No case has been"found, and probably none can be, either where the common law practice or the Code prevails, in which аn appeal is allowed in such a case; and for the uniformity of holding, there must be some good reason. If this Court should, after laborious thought and research, exрress its opinion on the facts alleged' in the complaint, it would be idle, for the facts are denied. It will be time enough for us to apply the law to the facts, when thе facts are found or admitted, so that we can give some effective judgment thereon.
Per CuRiAM. Appeal dismissed.