State v. . ClarkeState v. . Clarke
- Reporters:
- , ,
- Before:
- Schenck
It will be noted that the order of Judge Nettles from which appeal is taken simply “refuses to strike out the forfeiture heretofore entered in this cause.” This is in no wise a final judgment, and in no way affects a substantial right which could not be protected upon an appeal from a final judgment, and therefore the appeal is premature and should be dismissed. The proper procedure was to note an exception and appeal from the final judgment, if adverse to the defendants. *746 Morris v. Cleve, 194 N. C., 202, 139 S. E., 230; Smith v. Matthews, 203 N. C., 218, 165 S. E., 350; N. C. Prac. & Proc. (McIntosh), sec. 676 (7).
“The forfeiture heretofore entered,” referred to in the order appealed from, is likewise in no aspect a final judgment. It is only a “judgment nisi” entered at tbe July Term, 1942, of the Superior Court of Catawba County, and does not become a judgment absolute until so ordered by a judge at term. So far as the record discloses this has never been done. Therefore, if execution has issued upon, or is contemplated upon, the record as it appears before us it should be withdrawn or withheld. If the judgment nisi is finally made absolute, an execution may issue thereupon; but if the judgment nisi is stricken out, no execution may issue. Whether the judgment nisi will be made absolute, or whether it will be stricken out, either upon condition or otherwise, rests in the discretion of the judge presiding at the future terms of the Superior Court of Catawba County. C. S., 4588. S. v. Morgan, 136 N. C., 593, 48 S. E., 604.
The appeal is dismissed.