Perkins v. Sykes

57 S.E.2d 645 (1950)

231 N.C. 488

PERKINS v. SYKES.

No. 738.

Supreme Court of North Carolina.

March 1, 1950.

*646 A. H. Graham, Hillsboro, and L. J. Phipps, Chapel Hill, for plaintiff, appellee.

J. Grover Lee and R. M. Gantt, Durham, for defendant, appellant.

ERVIN, Justice.

The judgment adjudicates the issue raised by the defendant's cross-action, i. e., the title to the real and personal property used in carrying on the business of the E. P. Sykes Motor Company. It also judicially declares the right of the plaintiff to have an accounting of the partnership affairs in conformity to the prayer of the third cause of action stated in the complaint. But it leaves the first and second causes of action set out in the complaint *647 wholly untried, and postpones the actual taking of the account of the partnership affairs to a later occasion.

For these reasons, the judgment is a partial one, not disposing of the whole case. In consequence, the appeal is fragmentary and premature, and must be dismissed. Cole v. Farmers Bank & Trust Co., 221 N.C. 249, 20 S.E.2d 54; Garland v. Linville Improvement Co., 184 N.C. 551, 115 S.E. 164; Penn-Allen Cement Co. v. Phillips, 182 N.C. 437, 109 S.E. 257; Hinton v. Life Ins. Co., 116 N.C. 22, 21 S.E. 201; McIntosh on North Carolina Practice and Procedure in Civil Cases, section 676(7).

When the whole action is tried, an appeal will lie from the final judgment upon the whole controversy. Penn-Allen Cement Co. v. Phillips, supra.

Appeal dismissed.