Williams v. Bailey
Supreme Court of North Carolina
PeocebdiNG commenced before the Clerk of the Superior Court of Buncombe County. A petition was filed by petitioner, to which the respondents answered, and petitioners filed a replication to the answer. The clerk held that issues of fact were raised by the pleadings which should be passed on by a jury, and transferred the proceeding to civil issue docket for trial at term. The respondents excepted to said order and appealed to the judge.
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PeocebdiNG commenced before the Clerk of the Superior Court of Buncombe County. A petition was filed by petitioner, to which the respondents answered, and petitioners filed a replication to the answer. The clerk held that issues of fact were raised by the pleadings which should be passed on by a jury, and transferred the proceeding to civil issue docket for trial at term. The respondents excepted to said order and appealed to the judge. The appeal came on to be heard in Buncombe County before his Honor, Judge Stacy. Upon the hearing of the appeal the judge affirmed the order of the 'clerk.…
1DissentOlaRk, C. J.
As stated in the case settled on appeal, agreed to by both parties, this was a special proceeding begun before the clerk in Buncombe and transferred by him to the civil issue docket for trial. The appeal being heard before Stacy, J., the defendants moved to *40dismiss. His Honor refused to dismiss and directed that tbe cause be retained on tbe civil issue docket for trial. Tbe defendants appealed.
If there is one proposition of law wbicb has always been beld by us, without a single exception, it is that “no appeal lies from a refusal to dismiss.” In such case there is no judgment, but simply tbe…
2Cases cited36 opinions
- Plemmons v. Southern Improvement Co.Supreme Court of North Carolina · 1891
- Guilford v. . Georgia Co.Supreme Court of North Carolina · 1891
- State Ex Rel. Crawley v. WoodfinSupreme Court of North Carolina · 1878
- Jester v. . Steam Packet Co.Supreme Court of North Carolina · 1902
- Sams v. . PriceSupreme Court of North Carolina · 1896
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