On the trial before a justice of the peace on the 1st day of December, 1876, both parties being present, judgment was rendered for defendant. On the 8th day of the month the appeal was taken by the plaintiff, written notice thereof left with the justice, and an undertaking entered into for the stay of execution. No notice of the appeal, written or verbal, was given to the defendant. Upon the calling of the cause in the superior court at fall term, 1879, the defendant moved to dismiss the plaintiff's appeal for want of notice, as required by Bat. Rev., ch. 63, § 54. The motion was denied and notice ordered to issue of such appeal, and from this ruling the defendant appeals.
It has been too often adjudged in this court to need further discussion, that an appeal does not lie from the refusal of the judge to dismiss the action; and if taken, the appeal will be dismissed. The proper course is to proceed with the trial "leaving the parties to save their rights by exception" or to retain the cause until the trial can be properly had.Mitchell v. Kilburn, 74 N.C. 483; Crawley v. Woodfin, 78 N.C. 4;McBryde v. Patterson, Id., 412.
The direction that notice shall issue to supply the appellant's omission, suggested by a remark of RODMAN, J., delivering the opinion inMarsh v. Cohen, 68 N.C. 283, as we suppose, does not "affect a substantial right," within the meaning of the code, § 299, so as to give a right of appeal. Sutton v. Schonwald, 80 N.C. 20. The appeal must therefore be dismissed and it is so ordered.
PER CURIAM. Appeal dismissed. *Page 345