Shankle v. Whitley.

DOUGLAS, J., dissenting. Upon the issues found by the jury it was necessary to have an account taken, and the cause was referred to a referee to state the account. It was premature to appeal before the final judgment upon the coming in of the report. Blackwell v. McCain, 105 N.C. 460, and numerous cases there cited. The plaintiff should have merely entered his exception at this stage. Williams v. Walker, 107 N.C. 334.

A distinction must be noted between those cases in which the plea in bar is sustained or overruled as a matter of law by the judge, whereupon the party may appeal at once if he so elect(Royster v. Wright, 118 N.C. at page 155, and cases there cited; Smith v. Goldsboro, 121 N.C. 350), and cases like this, where the issues arising upon the pleadings have been (169) found by the jury and the reference is afterwards made to state an account or ascertain some incidental matter, which becomes necessary before final judgment upon the hearing. Even in the first class of cases it is optional to note an exception or appeal at once. Kerr v. Hicks, ante, 90.

It may not be improper to say, as the case was fully discussed on the merits, that the defendant was not estopped to set up his counterclaim in this action because he might, if he had chosen, have pleaded it in a former action against him by the plaintiff, brought for a different cause of action. The pleading of a counterclaim is optional. Woody v. Jordan,69 N.C. 189; Tobacco Co. v. McElwee, 94 N.C. 425.

Appeal dismissed.

DOUGLAS, J., dissenting. I do not think the appeal is premature.

Cited: Mauney v. Hamilton, 132 N.C. 300; Jones v. Wooten, 137 N.C. 425.