#### RAILROAD v. BAILEY.

(Filed December 18, 1906).

Condemnation Proceedings — Interlocutory Order — Premature Appeal.

An, appeal from tbe order of tbe Clerk appointing commissioners in a condemnation proceeding in pursuance of Revisal, section 2580, is premature, and an order of tbe Judge below remanding tbe cause to the Clerk is interlocutory, and no appeal lies therefrom to this Court.

Special PROCEEDING- for condemnation, by tbe Carolina and Tennessee Railroad Company against J. S. Bailey and others, pending in tbe Superior Court of SwaiN, and beard by Judge W. B. Allen at chambers, by consent, at Asheville on 31 October, 1906, upon appeal taken by defendant from an order of tbe Clerk of tbe Superior Court appointing commissioners. From an order of bis Honor dismissing tbe appeal from tbe order of tbe Clerk as premature, tbe defendant appealed.

Charles M. Busbee and F. II. Busbee for tbe plaintiff.

J. 8. Adams for tbe defendant.

BkowN, J.

We think bis Honor ruled correctly in dismissing tbe appeal as premature and properly remanded tbe cause to tbe Clerk to be proceeded with under tbe order appointing commissioners, which bad been made by tbe Clerk in pursuance of tbe statute, Nevisal, sec. 2580. In tbe case of Railroad v. Newton, 133 N. C., 132, it is decided that an order of tbe Superior Court in. condemnation proceedings, remanding tbe cause to tbe Clerk that be may bear tbe same, is interlocutory and no appeal lies therefrom to tbe Supreme Court, though a plea in bar was filed by tbe defendant. That no appeal can be taken at such stage in condemnation proceed*381ings, viz., when the Judge below remands the cause to the Clerk, has been repeatedly adjudged before the case of Railroad v. Newton. Telegraph Co. v. Railroad, 83 N. C., 420; Railroad v. Railroad, 83 N. C., 499; Railroad v. Warren, 92 N. C., 622.

Appeal Dismissed.