Best v. Lancaster

The plaintiffs moved to remand to the clerk, motion disallowed. Plaintiffs excepted. Plaintiffs moved for judgment for insufficient verification of answer. Motion disallowed, being met by counter-motion to amend the verification of answer on part of defendants.

Plaintiffs excepted and appealed. This was a proceeding to correct a mistake in a partition under The Code, sec. 1918, and was transferred by the clerk to the civil issue docket upon issues joined. In the Superior Court a motion by the plaintiff to remand to the clerk, without trial of the issue, (561) was denied. A motion for judgment on the ground of insufficient verification of the answer, was met by a counter-motion to permit a new verification, which was allowed. Thereupon the plaintiff appealed.

The appeal is premature. The plaintiff should have had his exceptions noted in the record, and on the appeal from the final judgment the rulings excepted to would have come up for review. There is no judgment to appeal from, but simply the refusal of a motion to remand and the allowance of a verification.

In Kruger v. Bank, 123 N.C. 16, there was no answer and no time allowed to file answer, or to demur, and the refusal of judgment under such circumstances was the denial of a substantial right given by sec. 386, of The Code. Phifer v. Insurance Co., 123 N.C. 410, and Cole v. Boyd,125 N.C. 496, held that the verification of the complaint being insufficient, a judgment by default final should be corrected into default and inquiry, but it was not held that the court could not permit a proper verification. As was said by Merrimon, J., in Grant v. Reese,90 N.C. 3, "Slight attention to the decisions of the Court would prevent miscarriages like the present and facilitate the administration of justice."

Appeal dismissed. Cited: Cantwell v. Herring, 127 N.C. 84.

(563)