The appellant moves to remand the cause because there is no case on appeal, and the judge (Graves) died before settling the same. This would be true, if it was an appeal in which a case settled is essential, and the appellant has not been guilty of laches. State v. Parks, 107 N.C. 821. But the present case is an appeal from a refusal of leave to amend the answer. No case on appeal was necessary, as there were no facts dehors the record to be set out. Furthermore, no appeal lay at this stage, as it was an interlocutory order, nor indeed, at all, as the granting or refusal of the amendment was a matter of discretion. Henry v. Cannon, 86 N.C. 24, and numerous other cases cited in Clark's Code (2 Ed.), pp. 564, 565.
Appeal dismissed.
Cited: Heath v. Lancaster, 116 N.C. 70; Faison v. Williams, 121 N.C. 153. *Page 379
(553)