Opinion
December Term, 1820.
There cannot be an appeal to the Supreme Court from the judgment of the Superior Court granting a new trial for matter of law; nor from a judgment of respondeat ouster given on demurrer to a plea in abatement; nor from a decree disallowing a plea to a petition for distribution and ordering the defendant to answer, because these are not final judgments, sentences or decrees.
THIS was an indictment for perjury, from IREDELL, which charged that the prisoner was sworn in due form of law, before A. B., a justice of the peace, upon the Holy Gospels of Almighty God. The evidence upon the trial was that the prisoner was not sworn on the Gospel, but that he said he was scrupulous of taking a book-oath, and prayed the benefit of the act of 1777, ch. 4, and therefore that he was sworn with uplifted hand, according to the provisions of the second section of that act. The jury found him guilty, and a rule for a new trial was granted upon the ground that the indictment was not supported in that particular by the proof, which upon argument, was made absolute. Mr. Solicitor Wilson, being dissatisfied therewith, appealed to this Court.
Henderson, for the prisoner, submitted whether this Court would entertain the appeal, because he conceived that the order for a new trial is not the final judgment or sentence meant in the act of 1818, ch. 1.
He was proceeding to make some observations upon the point of law stated in the record, but he was stopped by Taylor, C. J., who said that the appeal was certainly premature, and that Pierce v. Sneed (unreported case) was decided upon the very point in this Court at June Term, 1819.
Let the appeal be dismissed (189) and the cause remanded.
There came on two other cases at this term, which involved a similar point, and were disposed of in like manner.
The first was that of The President and Directors of the State Bank of North Carolina v. Raiford and others, which was debt in WAKE Superior Court of Law. The defendants all resided in CUMBERLAND, and there the process was served. For this cause they pleaded in abatement. The plaintiffs replied that they could sue in any court, and set forth the charter of the bank; and the defendants demurred; upon argument the demurrer was overruled and judgment of respondeat ouster given, and the defendants appealed to this Court. Here the appeal was dismissed, because the judgment from which it was taken was not final; and the cause was sent back for further proceedings in the court below.
The other case was that of Wilson v. M'Dowell, from BURKE. It was a petition against the defendant as an administrator of the estate of an intestate, for a distributive share; there was a plea in bar that the defendant held the estate of which a share was sought in a different right, and that it belonged to the defendant and others in their own right and never in fact belonged to the intestate; and the plea set forth the particulars of the title. Upon argument of the plea, it was disallowed, and the defendant ordered to answer. From that he appealed to this Court, and here his appeal was dismissed for the reasons assigned in the foregoing cases.
(190)