Littlejohn v. . Williams , 17 N.C. 380 ( 1833 )

The Court has not jurisdiction of a case in the situation of this. The act of 1818 provides for the removal of causes in equity to the Supreme Court in two cases — the one after a decision in the Superior Court, by appeal therefrom; the other, before a decision, but not until the cause should have been set down for hearing. These latter words and the context imply that no case is to be brought here until it shall have reached that stage in which it may be heard upon the bill, answer, and proofs, and finally disposed of in this Court, (381) without the necessity of sending it back to be proceeded on for any purpose in the Superior Court. Accordingly, many cases have been returned without any decree here, which came up while standing on a demurrer or plea, for upon overruling them the party is then put to answer, which cannot be done here. If the demurrer or plea be allowed in the Superior Court, and the bill thereupon dismissed, the complainant may then appeal, within the act of 1818, because the decree is final, and if reversed here, the case is sent back for further proceedings below. And under the act of 1831 there may now, by leave of the Superior Court, be an appeal from a decree overruling the demurrer or plea, which does not arrest further progress in the cause in the court below. But unless upon appeal of the one kind or the other, no case can be brought here until it shall have been set for hearing on the merits. This case must, therefore, be remanded.

PER CURIAM. Remanded.

Cited: S. c., 21 N.C. 343; Ray v. Ray, 41 N.C. 356.