Opinion
(December Term, 1834.)
Discharging a rule to show cause why a new trial should not be granted, is not a judgment from which an appeal can be taken.
THE defendant was convicted on the last Circuit, at Anson, before his honour Judge SETTLE, of being the father of a bastard child; "whereupon," the record stated, "a rule was moved for and obtained to show cause why a new trial should not be granted for misdirection of the Court, which, on argument, was discharged. From which the defendant prayed an appeal to the Supreme Court, and it was granted."
Winston, for the defendant.
The Attorney General, for the state.
— The case is not in a state for the decision of the questions argued at the bar, as no judgment of the Superior Court, either final or interlocutory, appears upon the record. The discharge of a rule to show cause, why a new trial should not be granted, is not an interlocutory judgment within the act of 1831, ch. 34; which means a decision of the Court establishing a right of the plaintiff or disposing of some part of the defence conclusively, as that partition be made, or that the defendant answer over, or the like.
The appeal must therefore be dismissed at the costs of the appellant, and the case remanded for further proceedings to be had in the Superior Court.