Where, pending the appeal from an order granting or refusing an injunction till the hearing, the case is tried and disposed of and no appeal is taken therefrom, the appeal will be dismissed, since only costs are involved. Pritchard v. Baxter, 108-129.

Continuance. No appeal lies from an order granting or refusing a continuance. State v. Lindsay, 78-499; State v. Scott, Co-365; Johnson v. Maxwell, 87-18. Contra, Bank v. Tiddy, 67-169.

Does not lie from an order granting a continuance, unless there is palpable abuse. McCurry v. McCurry, 82-296; Austin v. Clarke, 70-458; Armstrong v. Wright, 8-93.

No appeal lies from an order granting a continuance. Isler v. Dewey; 79-1; State v. Vann, 84-722; Jaffray v. Bear, 98-58.

The granting or refusing a continuance is entirely discretionary with the presiding judge, and cannot be assigned for error on appeal. Dupree v. Ins. Co., 92-417.

Where an order grants a continuance not merely for the term, and for some incidental reason that is an adjudication which arrests the action for a length of time, it affects a substantial right, and can be appealed from. Stratford v. Stratford, 92–297.

Granting or refusing a continuance is a matter of discretion, and not reviewable. Banks v. M'fg Co., 108-282.

NOTE.-Sections 401 and 402, if followed more strictly, would save costs in cases where there is meritorious ground for continuance, and when there is not, the last paragraph of 402, as well as the principle, that justice shall not be delayed, forbids the grant of the continuance.

Interlocutory orders.-No appeal lies from an interlocutory order not precluding the rights of any party. Sutton v. Schonwald, S0-20; Telegraph Co. v. Railroad, 83-420; Railroad v. Warren, 92-620.

No appeal lies from an interlocutory order appointing commissioners to assess damages for condemnation of a fence-way under the act of 1881, ch. 172 (No Fence Law). Commissioners v. Cook, 86–18.

An appeal lies at once from an interlocutory order that may in effect put an end to the action, or that may prejudice a substantial right of the party complaining. Merrill v. Merrill, 92-657.

An appeal cannot be taken from an order of the superior court, which does not terminate the action, and which does not deprive the appellant of any substantial right which he might lose if the order is not reviewed before final judgment. Under such circumstances, the party can have his exception entered of record, and, if necessary, can have it considered by the supreme court on appeal after the final judgment. Clement v. Foster, 99-255; Welch v. Kinsland, 93-281; Hailey v. Gray, 93-195.

An order remanding the papers to the clerk, in order that he may hear a motion to amend the pleadings, to the end that an account should be taken, is interlocutory and does not impair a substantial right, and cannot be appealed from. Loftin v. Rouse, 94-508.

Appeals from interlocutory or subsidiary orders, judgments and decrees made in a cause, carry up for review only the ruling of the court upon that specific point. The order or judgment appealed from, is not vacated, but further proceedings under it are suspended until its validity is determined. Meanwhile the action remains in the court below. Green v. Griffin, 95-50.

An appeal from an interlocutory order only lies when it affects some substantial right and will work injury to the appellant if not corrected before an appeal from the final judgment. Lane v. Richardson, 101–181;

レ

Leak v. Covington, 95-193; Bynum v. Commissioners, 101-412; Martin v. Flipper, 101-452; Spencer ex parte, 95-271.

An order appointing commissioners to assess damages is interlocutory, and no appeal will be entertained until after final judgment upon the report of the commissioners. Railroad v. Warren, 92-620; Hendrick v. Railroad, 98-431.

When appellant is not seriously prejudiced by delay, and not deprived of any substantial right by the rendition of an interlocutory judgment, etc., the regular and orderly method of procedure is to except and proceed to final judgment, so that the appeal may bring up the whole case at once. Sneeden v. Harris, 107–311; Blackwell v. McĈain, 105–460.

In an action to foreclose a mortgage, it appeared that the plaintiffs had a lien on the land specified, and the court made an order directing that an account be taken to ascertain the balance of the debt yet unpaid, and retaining the cause for further action: Held, that the order was interlocutory, and appeal would not lie from it. Williams v. Walker, 107-334.

Order making additional parties.-An appeal can be taken from an order of the superior court either making or refusing to make additional parties, when such order affects a substantial right of the appellant; and it seems that the appeal may either be taken at once, or it can be assigned as error on an appeal from the final judgment. Merrill v. Merrill, 92-657.

Where the superior court allowed a nol. pros. as to certain defendants, who appealed from the order, and moved in the supreme court to make other persons parties, whose presence in the action was only necessary if the nol. pros. had been erroneously entered: Held, that the motion to make parties will not be considered, until the question raised by the nol. pros. is disposed of. Lee v. Eure, 92-283.

The supreme court will not, before the final determination of an action, entertain an appeal from an interlocutory order making additional parties. Merrill v. Merrill, supra, distinguished; Lane v. Richardson, 101-181.

Premature appeals.-No appeal lies from an order re-committing a referee's report, with instructions to correct the same in conformity to the rulings of the court. Jones v. Call, 89-188; Torrence v. Davidson, 90-2; Grant v. Reese, 90-3; Lutz v. Cline, 89-186; Leak v. Covington, 95-193; Wallace v. Douglas, 105-42; Com'rs v. Magnin, 85-114.

When transcript fails to show a judgment of record appealed from, the appeal will be dismissed. Logan v. Harris, 90-7.

Where part of the issues in an action are decided by a trial, and others, material to the final disposition of the cause, are left open for further adjustment, an appeal is premature, and it will not be entertained. Hailey v. Gray, 93-195; University v. Bank, 92-651.

Where a demurrer to a counterclaim is sustained and the counterclaim stricken out, the defendant cannot appeal from the judgment, and so stop the trial of the action, but must note his exception to the action of the court, and bring the point up for review on an appeal from the final judgment. Knott v. Burwell, 96-272; Bazemore v. Bridgers, 105-191.

An appeal, from an order of the superior court for the docketing of a case brought up from a justice's court by recordari, is premature, and will be dismissed. State v. Warren, 100-489.

Where, in a processioning proceeding, the defendant filed exceptions to the report of the freeholders, which were overruled, but the court directed an issue to be submitted to the jury in respect to the location of the disputed land, an appeal from the judgment overruling the excep

tions before the trial of this issue and the final judgment of the court thereon, was premature. Martin v. Flippin, 101-452.

When, in an action against a sheriff for a false return, the court permits such return to be amended, the plaintiff should note his exception, and, unless the amended return is admitted to be true, proceed to try the issue. An appeal before final judgment on such admission, or a verdict, is premature, and will be dismissed. Mfg. Co. v. Buxton, 105-74.

Where the jury rendered their verdict for the plaintiff, and thereupon the court, before rendering judgment upon the verdict, made an order of reference for an account between the parties to ascertain the balance due, to which no exception was made, but defendant appealed, such appeal must be dismissed as premature. Blackwell v. McCain, 105-460. When the court sets aside a verdict as to one issue, and enters an interlocutory judgment as to the other, the proper course of the party injured is to note an exception, and go on to the trial of the remaining issue, so that the whole appeal may be considered at once. Appeal from such interlocutory judgment, and at such stage of the proceeding, is premature, and will be dismissed. Hilliard v. Oram, 106-467.

Does not lie from a preliminary order settling the issues. School Committee v. Kesler, 66-323.

Appeal does not lie from a failure to frame an issue not tendered by a party. Kidder v. McIlhenny, 81-123; Curtis v. Cash, 84-41.

Does not lie from an order appointing commissioners to lay out a rightof-way. Telegraph Co. v. Railroad, 83-420.

An appeal lies from an order confirming the report of commissioners to lay out a right-of-way. Railroad v. Railroad, 83-499.

In a criminal case an appeal does not lie from the overruling of the defendant's demurrer to an indictment. Where the demurrer is sustained, the judgment is final, and the state can appeal. State v. McDowell, 84-798.

Ordinarily, questions arising and decided during the examination of a witness cannot be singled out and the exception made the subject of a separate appeal, yet such appeal may be sustained when a party is deprived of important testimony, and the action, notwithstanding such appeal, may proceed to full preparation for trial. Com'rs v. Lemly, 85-341.

An appeal from an order setting aside a report of commissioners in partition will not be dismissed as premature. Skinner v. Carter, 108-106. Appeals in a fragmentary manner.—The court will not entertain appeals brought up in a fragmentary manner. Hines v. Hines, 84-122; Commis

sioners v. Satchwell, 88-1; White v. Utley, 94-511.

The whole case must come up on appeal. Hines v. Hines, 84-122. An appeal from the ruling upon one of several issues will be dismissed. The trial and appeal must be upon the whole case. Hines v. Hines, 84-122; Arrington v. Arrington, 91-301.

The trial of an action should embrace and determine all the matters at issue, so that a final judgment may be entered and any errors committed may be corrected upon one appeal. "Fragmentary appeals " will not be tolerated. Therefore, in an action to recover land, with damages for its detention, where the issue as to the title and right to possession was tried, but the issue as to damages was reserved to be afterwards tried if it should be adjudged that the plaintiff was entitled to recover, the supreme court would not entertain an appeal for reviewing alleged errors on the trial of the issue submitted. Hicks v. Gooch, 93–112. See Hilliard v. Oram, supra.

Fragmentary appeals will not be allowed when the subject-matter could be afterwards considered and error corrected without detriment to

the appellant. But this rule does not apply to interlocutory orders, the granting or refusal of which may produce present injury or loss. Davis v. Ely, 100-283.

Matters of discretion and not reviewable.—An appeal does not lie from the superior to the supreme court upon the refusal of the judge below to pass upon the competency of evidence and its materiality before the trial any more than from his refusal to try or continue a cause, or from his order to allow or disallow an amendment. Wallington v. Montgomery, 74-372.

No appeal lies from an order setting aside a compulsory reference, nor from a refusal to allow thereupon an amendment presenting a new issue. Busbee v. Surles, 79-51.

Does not lie from a refusal of the judge to re-open a case for additional evidence. Pain v. Pain, 80-322.

No appeal lies from a refusal to try an action on a demurrer after the withdrawal of the subject-matter to which it relates, and the consequent continuance of the cause. Gay v. Brookshire, 82-409.

Nor from an order for several defendants to pay a sum in solido without a previous finding that the fund was under their joint control. Corbin v. Berry, 83-27.

No appeal lies for allowing a leading question to be asked by a party of his own witness. Bank v. Pinkers, 83-377; Johnson v. Allen, 104-131. Nor from a refusal to amend a record. Perry v. Adams, 83-266; State v. Swepson, 83-584.

The granting or refusing leave to file exceptions to a referee's report at a term subsequent to the one to which the report is submitted is a matter of discretion and not appealable. Long v. Logan, 86-535; Wittkowsky v. Logan, 86-540; Long v. Gooch, 86–709.

Nor from consolidation of cases. Morrison v. Baker, 87-76.

The allowance made to referees for their services is entirely in the sound discretion of the court, and is not reviewable upon appeal. Worthy v. Brower, 93-492.

The order in which consolidated cases are tried is in the discretion of the court, and not reviewable. Jones v. Jones, 94-111.

Whether or not the facts pleaded in bar are such as to require that they be passed upon before ordering a reference to state an account, rests in the sound discretion of the court, and the decision of the court thereon is not appealable. State v. McMahon, 85-296; Leak v. Covington, 87-501. Where the judge below, in the exercise of his discretion, refuses to open the bidding on an advance of ten per cent. before the sale is confirmed, the supreme court will not direct him to do so. Trull v. Rice,

92-572.

The refusal of the court to hear affidavits upon a motion to confirm a report in partition is a matter of discretion and not reviewable. Skinner v. Carter, 108-106.

Amendments.-No appeal lies from refusing or allowing amendment to complaint. Lippard v. Roseman, 72-427; Dobson v. Chambers, 78-334Nor from a refusal to allow defendant to put in an answer at the trial term. Boddie v. Woodard, 83-2.

Semble, that a refusal to hold an answer frivolous is not appealable. Hull v. Carter, 83-249; Brogden v. Henry, 83-274.

No appeal lies from a refusal to strike out part of defendant's answer. Turlington v. Williams, 84-125.

The refusal of a judge to allow an answer to be filed at the trial term is a matter of discretion and not appealable. Reese v. Jones, 84-597. No appeal lies from a refusal to grant a motion to strike out alleged improper matter from the pleadings. Best v. Clyde, 86–4.

Allowing or refusal of amendments to the pleadings is not appealable. Henry v. Cannon, 86-24.

Motions in regard to amendments are addressed to the discretion of the court, and its decisions thereon are not appealable. Wiggins v. McCoy, 87-499.

An order of the superior court, striking out an answer in an action of ejectment for want of a bond by the defendant, is reviewable, where the defendant has been led to assume that the plaintiff has waived the bond. McMillan v. Baker, 92-110.

A refusal to permit additional pleadings to be filed, or original pleadings to be amended, is discretionary and not reviewable. Warden v. McKinnon, 99-251.

The substitution of plaintiffs is in the discretion of the court. Reynolds v. Smathers, 87-24.

Doubtful if an appeal lies from an order making additional parties. Johnston v. Neville, 68-177.

The adding or striking out the name of any party is a matter of discretion and not reviewable. Jarrett v. Gibbs, 107-303.

Matters not reviewable.-No appeal lies from an order striking out an irregular judgment at the same term it was taken. Dick v. Dickson, 63-488.

The refusal of the judge to accept a bond tendered as security for a prosecution, is not subject to review. Futrell v. Spivey, 63-526.

The supreme court cannot review an order striking out a judgment depending, in part, upon the question whether there had been a verdict. Simonton v. Chipley, 64-152.

An order of a judge for a defendant to appear at a subsequent time and show cause why a receiver may not be appointed, is not appealable. Gray v. Gaither, 71-55.

No appeal will lie from a mere refusal of the judge to give a judg ment prayed for, except in the case of his refusal to grant an injunction. Maxwell v. Caldwell, 72-450; Capel v. Peebles, 80-90.

No appeal lies from the decision of the judge below, either at chambers or in term, upon the sufficiency of an indemnity bond executed in compliance with his order. Steinberger v. Hawley, 85-141.

The adjudication by the judge that the undertaking on granting an injunction has been duly executed and filed, is conclusive, and no appeal lies therefrom. Bynum v. Commissioners, 101-412.

Usually, a ruling of the court upon taxation of witness tickets is not appealable, but it is otherwise when the court refuses to act on the motion, on the ground of a want of power. In re Smith, 105-167.

No appeal lies from an order of the superior court directing the clerk to send up to the next term a transcript of proceedings supplemental to execution. Bank v. Burns, 107-465. Nor from refusal to remove a cause. Albertson v. Terry, 109, and cases cited.

From order granting or refusing a new trial.—This section applies only to "matters of law or legal inferences," and not to an order involving a mere discretion, and whether a new trial ought to be granted, because the verdict is against the weight of evidence, is a matter solely in the discretion of the judge who tries the cause. Jenkins v. Ore Dressing Co., 65-563.

Where a judge set aside a verdict and granted a new trial for error of law in his instructions to the jury, the party prevailing may appeal from the order granting a new trial, and if it appear that his instructions were correct, it will be set aside. Bryan v. Heck, 67–322.