Johnson v. . Roberson

BeowN, J. It appears from tbe record tbat tbis is an action to restrain defendants from cutting certain timber and to subject it to sale for tbe satisfaction of certain judgments beld by plaintiffs against defendants. Tbe issues were tried at September Term, 1915, Daniels, J., presiding. From tbe judgment tben rendered, defendants appealed. Tbe appeal was dismissed by tbe Supreme Court. Defendants tben moved in said Court for a certiorari to bring tbe record up, wbicb was denied. Defendants again moved upon affidavits to reinstate tbe appeal, wbicb motion was denied. Tbe commissioner made sale of tbe timber according to tbe decree signed by Daniels, J., and reported to October Term, 1915. Upon tbe bearing of a motion to confirm tbe report of sale a decree was entered confirming tbe same, and defendants appealed. Tbe defendants contend tbat tbe decree entered by Daniels, J., at September Term, 1914, was interlocutory only, and tbat, notwithstanding they appealed from it and their appeal was dismissed, they have tbe right to review on tbe present appeal all tbe proceedings and rulings on tbat trial. Twelve issues were tben passed on by tbe jury, tbe necessary facts found, and a final decree entered declaring tbe rights and liabilities of tbe parties, ordering tbe timber to be sold, and decreeing tbat tbe proceeds be applied to tbe satisfaction of tbe judgments. A commissioner was appointed to sell tbe timber and give effect to tbe decree. Tbat such a complete adjudication of tbe rights of tbe parties to tbe action can be called interlocutory is a proposition wholly untenable. If tbat decree is interlocutory, tben tbe successor of Judge Daniels could set it aside, and tbe labors of judge and jury would have been in vain. An interlocutory order or decree is provisional or preliminary only. It does not determine tbe issues joined' in tbe suit, but merely directs *196 some further proceedings preparatory to the final decree. 1 Barb. Ob. Pr., 326, 327; 1 Black Judgments, 21. In the decree rendered by Daniels, J., an ascertained indebtedness is declared, judgment entered, and a foreclosure by sale adjudged. “Such judgment is final as to the amount of indebtedness so adjudicated, and it is also final for purposes of appeal as to all debated and litigated questions between the parties preceding such decree.” Hoke, J., in Williams v. McFadyen, 145 N. C., 157. The appointment of a commissioner to sell the timber was auxiliary and necessary to give effect to the decree. The judgment of September Term, 1914, completed the main purpose of the action and settled and determined the rights of the parties. The proceedings on that trial cannot now be reviewed. The defendants properly appealed at the term the judgment was rendered, but lost their right to have this Court review them, and cannot now be heard. The defendants assign error “for that his Honor, Judge Connor, overruled the exceptions of the defendants Dickerson and Roberson to the report of the commissioner,” etc. There are ten of these exceptions altogether, and, as we have repeatedly held, such assignments of error are too general to comply with the rule of this Court. Such broadside assignments will not be considered. Sturtevant v. Cotton Mills, ante, 119. However, we have looked into the report and decree of confirmation of sale, and think that the matters excepted to were within the sound discretion of the court. Affirmed.