#### J. P. CAMERON v. J. W. BENNETT.

Appeal— Practice.

An appeal, from a refusal to render judgment, upon the pleadings, taken before the trial will not be considered. The proper practice is to enter the motion, and if it is refused note an exception and proceed with the trial.

Motion by plaintiff for judgment upon the pleadings, heard at February Term, 1892, of Riohmond Superior Court, Boykin, J., presiding.

The motion was refused, and the plaintiff appealed.

Messrs: Burwell and Walker (by brief), for plaintiff.

Mr. J. D. Shaw, for defendant.

Clark, J.:

Complaint and answer having been filed, the record states, “ Motion for judgment refused; motion denied; appeal by plaintiff.” No judgment having been rendered, no appeal lies. Taylor v. Bostic, 93 N. C., 415; Baum v. *278 Shooting Club, 94 N. C., 217; State v. Hazell, 95 N. C., 623; State v. Divine, 98 N. C., 778.

Besides, a counter-claim is in the nature of a cross-action, and the motion for judgment upon the pleadings was in the nature of a motion to dismiss the cross-action. It is settled that an appeal does not lie from the refusal of a motion to dismiss ah action. Mitchell v. Kilburn, 74 N. C., 483; McBryde v. Patterson, 78 N. C., 412; Railroad v. Richardson, 82 N. C., 343; Plemmons v. Improvement Co., 108 N. C., 614. There are numerous other cases to the same effect. For the same reason, an appeal will not lie for a refusal to dismiss the cross-action, in which the defendant is virtually plaintiff. Indeed, the proper course of procedure is pointed out in Walker v. Scott, 106 N. C., 56, in which it is said, “if an answer is insufficient the plaintiff can move for judgment, and if it is refused have an exception noted.” The plaintiff should have had his exception noted and have proceeded with the trial. If the result of such trial had been in his favor, he would have desired no appeal; if it had been against him, his exception would have come up for review. The Court will not take “ two bites at a cherry.”

Dismissed.