#### ALLEN WARREN v. STANCILL & RANDOLPH.

Practice — Order Setting Aside Arbitrator’s Award, When Interlocutory — Appeal.

An order setting aside an arbitrator’s award in a pending action and directing other proceedings is interlocutory and not final, and no appeal lies directly therefrom. In such case, an-exception should be noted so as to be passed on when final judgment is rendered and appealed from.

Civil actioN, heard on award of arbitrator and exceptions thereto before Hoke, J., at December Term, 1893, of Pitt Superior Court. The facts appear in the opinion of Associate Justiee MontgoMery. The plaintiff appealed.

Messrs. Shepherd c& Busbee, for plaintiff (appellant).

Mr. John L. Bridgers, for defendant.

MONTGOMERY, J.:

This action was by consent of the parties referred by the court to E. A. Moye, arbitrator, his award to be the judgment of the court. When the award came in, exceptions were filed thereto by the defendant. After hearing the exceptions his Honor gave judgment setting aside the award, making new parties and re-referring the case to the same arbitrator. From this judgment the plaintiff undertook to appeal to this Court. It is unnecessary for us to consider whether sufficient .cause appeared on the face of the award to warrant his Honor in setting it aside. The only question for our consideration *113is whether the judgment is appealable. We are of the opinion that no appeal lay because the judgment directed further proceedings and was not a final one. It affected no substantial right of the plaintiff which required an immediate adjudication to prevent loss or injury to him. The judgment below only delayed the appeal until the final judgment should be granted, and such delay did not deprive the appellant of any substantial right. Hailey v. Gray, 93 N. C., 195. In Blackwell v. McCaine, 105 N. C., 460, it is said: “Many cases decide that an appeal does not lie at once from an interlocutory judgment or order, unless it puts an end to the action, or may destroy or impair a substantial right of the complaining party to delay his appeal until the final judgment. He must assign error, or except, and have the same noted in the record and bring the whole up by an appeal from the final judgment.” (See the numerous cases cited on these questions of practice in that opinion). In Tenant v. Divine, 24 W. Va., 388, it appeared that a submission to arbitrators was made by agreement of parties in pais, the award to be a judgment of tfie circuit court, of Montgomery county. The award was set aside, and the defendant in error to the Supreme Court of appeals claimed that that Court was without jurisdiction because the judgment of the circuit court was interlocutory and not final, and that no appeal would lie from any other than a final judgment. It was held, however, that the judgment of the lower court was final because nothing remained in that court, and no further proceedings could be had therein without resorting to a new action, either on the original cause of action, or the agreement for submission. In the same case it was declared that, if the order of reference had been made in a pending action and not upon agreement of the parties in pais, the rule would have been different; because, though the award was set aside, yet the action still *114remained in court for further proceedings and a final judgment might have been had therein without a new action. And so, in Manlow v. Thrift, 5 Munford, 493, where the award made in a pending action was set aside upon the appeal of the plaintiff, the judgment below was held interlocutory and the appeal permature. The appeal must be dismissed.

Dismissed.