Brown & Co. v. Nimocks

Faircloth, C. J. On May 19, 1897, the defendant Nim-oclts made an assignment of liis property to W. S.- Cook in trust for bis creditors, in classes. On May 27, 1897, the plaintiff sued out an attachment on some of said property, on the assumption that the assignment was void. On appeal, this Court (124 N. C., 417) held that the assignment was not void, and ordered a new trial. At May Term, 1899, the plaintiff tendered a judgment to be signed for the amount of his debt, which was not disputed, and that such judgment be declared a valid lien on .the assigned estate, and that certain other claims in the second class were of equal dignity with that of the plaintiff. This tendered judgment was refused, and his Honor entered judgment as follows: . That the assignment is valid, that the attachment be dissolved and set aside, and that, an issue be submitted to the jury to ascertain the defendant’s damages, if any, by reason of the attachment. To this judgment and the refusal of his Honor to sign the tendered judgment, the plaintiff -excepted. The Oonrt also ordered that-all the preferred creditors-in the assignment and certain judgment ’creditors- be made parties defendant, with leave to file pleadings, and tha.t-snmmons issue accordingly. A motion by tire defendant to amend his schedule, also- to amend his answer, was continued. The plaintiff appealed from the said refusal and judgment and orders, and in, this Oonrt the defendant moves to dismiss the appeal on the ground that it is premature. The Code, sec. 548, allows an appeal from every judicial order, upon a matter of law or legal inference, which affects a substantial' right; or determines the action; or discontinues the action, or grants, or refuses a new trial. Many decisions have been rendered on this section of The Code. *810 The intent a.nd policy of the statute, as we construe it, are that an appeal to this Court should present for review the exceptions taken and questions of law arising upon the whole case, and that appeals presenting the exception and legal questions in piece-meals will not be entertained, when no-substantial right is put in jeopardy by such refusal. Any other rule would confuse litigation and vex litigants, as well as increase costs. It would be inconvenient for each preferred creditor, in a. case like this, to- prosecute his appeal when other rights of the same dignity have not been tided. The plaintiff can preserve his rights by having his exceptions noted in the record, and -bringing them forward on the final hearing. It is true- the plaintiff’s claim is admitted to be correct by the present defendant, but when the- other preferred creditors are in, they will have- the right to litigate inter se, and to prorate in case of a deficiency of assets. The plaintiff has no- more or better lien than the others of the 'Same class. The order and judgment of his Honor were quite proper. ' No final judgment has been entered, and none could be in the present condition of the; case. The numerous decided cases will he found in Clark’s Code, under sec. 548— notably Hines v. Hines, 84 N. C., 122; Clement v. Foster, 99 N. C., 255, and Welch v. Kinsland, 93 N. C., 281. Appeal dismissed.