Moore v. . Hinnant , 87 N.C. 505 ( 1882 )

This is a controversy submitted without action (506) (to the superior court of Johnston County) upon an agreed statement of facts under C.C.P., Sec. 315.

The defendant, sheriff of Johnston County, under several writs of attachment sued out against one H. L. Watson by creditors, had levied upon certain goods of the debtor, which the plaintiff held under a prior assignment to himself in trust to secure all the creditors.

The object of the suit is to have a decision of the court upon the sufficient in form, and legal efficacy of the deed, in vesting the title in the plaintiff against the attaching creditors.

It is agreed that if the validity of the conveyance be sustained, judgment shall be rendered requiring restitution of the goods; if not, judgment shall be entered against the plaintiff for costs.

His Honor filed an opinion declaring that the deed of assignment is not fraudulent and void, and without any judgment rendered, so far as the record discloses, the defendant appeals.

When a case is heard under this summary method authorized by the Code, the statement should embrace all the facts material to a final and complete determination, with nothing further to be done, except to carry the judgment into effect. The present statement seems to be defective in not specifying any goods attached, and to be restored, in case of a decision favorable to the plaintiff.

But an insuperable difficulty is interposed to our entertaining the appeal, in the fact, that it is attempted to be taken in the midst of a trial and before the rendition of judgment. Appeals are not authorized under such circumstances, but only from a "judgment, order or determination of the judge," (C. C. P., Sec. 299) and then only when a trial entered upon is concluded. For this imperfection in the record (507) the cause must be remanded at the costs of the appellant.

Since the opinion was filed the parties propose by consent to file the record of the judgment as an amendment, and if this shall be done, the order remanding will be withdrawn, and the cause will remain on the docket for a future hearing in the amended form.

PER CURIAM. Order accordingly.

Cited: Lutz v. Cline, 89 N.C. 188; Overman v. Sims, 96 N.C. 454;Rogerson v. Lumber Co., 136 N.C. 269; Privette v. Privette, 230 N.C. 53;Veazey v. Durham, 231 N.C. 362.