#### CHARLES S. RILEY & COMPANY v. W. T. SEARS & COMPANY.

(Filed 20 October, 1909.)

1. Receivers — Reference.

An order issued in this case, being a creditor’s bill, requiring the receiver of a corporation to pass upon the different claims of the plaintiffs, and upon certain priorities claimed by some of ' them, is in effect an order of reference.

2. Reference — Findings—Issues—Exceptions—Judgments—Appeal Premature.

An appeal is premature from an order of the judge to submit to the jury issues raised by exceptions to referee’s report, when the order of reference appears to have been made without objection. The practice is to proceed with the inquiry, and appeal from the final judgment or a judgment in the nature of one.

Appeal from W. B. Allen, J., May Term, 1909, of New HaN-OVER.

Tbe court ordered that an issue be submitted to. the jury to determine whether the claim of certain petitioning creditors arose by reason of work and labor done within sixty days next before proceedings of insolvency-were instituted against defendant company. From this order plaintiffs excepted and appealed.

The facts are stated in the opinion.

Herbert McGlammy for plaintiff.

Graham Kenan for defendant.

Hoke, J.

Plaintiffs, Charles S. Eiley & Co., instituted an action in the nature of a creditor’s bill against W. T. Sears & Co., incorporated in this State, alleging the total insolvency of the company; that plaintiff was a creditor to a large amount, part of it secured by mortgage on the company’s property or a large portion of it; that there were various other creditors, most of them in small amounts, and that the appointment of a receiver was required, etc. Thereupon, various creditors intervened by petition, some of them alleging the existence of debts for work and labor performed within sixty days before proceedings were instituted, and claiming a prior lien on defendant company’s assets, under section 1206, Eevisal 1905.

Plaintiffs denied the indebtedness of all or the greater part of the petitioning creditors, and denied, further, that such creditors had any prior lien, as claimed by them, and alleged the superior claim to be in plaintiff, under and by virtue of certain mortgages. A receiver was appointed, and at October Term, 1908, the judge presiding issued an order requiring the receiver to pass *188upon tbe different claims. As tbe record now appears, tbis seems to have been in effect an order of reference, and we find no exception noted. Tbe receiver made report, finding tbat numbers of tbe claims were valid and were for wort and labor witbin tbe time alleged. Thereupon, tbe plaintiffs filed various exceptions to tbe report of tbe receiver, raising objections to many of tbe claims and to tbe lien claimed by tbe holders, and at May Term, 1909, tbe court made an order directing tbat tbe following issue be submitted to tbe jury: “Were tbe services rendered by tbe petitioners, or any of them, and, if so, which ones, witbin sixty days next preceding tbe date when proceedings in insolvency were instituted against W. T. Sears & Co., incorporated ?”

From tbis order, as stated, tbe plaintiff excepted and appealed.

Our decisions are to tbe effect tbat when a good plea in bar is set up in tbe pleadings, until such plea is in some way disposed of, an order of reference, on objection, made in apt time, is erroneous, and an immediate appeal will lie. “If such plea in bar appears and. is overruled or sustained as a matter of law by tbe judge, it is optional with tbe party to take an appeal at once or have an exception noted.” Jones v. Wooten, 137 N. C., pp. 421-425. When, however, tbe order of reference is made without objection properly noted, or tbe plea in bar is disposed of by adverse verdict of the jury, then tbe proper practice is to proceed with the inquiry, and an appeal only lies from a final judgment or one in tbe nature of a final judgment. Jones v. Wooten, supra; Brown v. Nimocks, 126 N. C., p. 808; Hailey v. Gray, 93 N. C., 195; Driller Co. v. Worth, 117 N. C., p. 515.

In tbe case at bar, so far as appears, tbe order of reference was made without objection. Furthermore, tbe appeal has been taken from tbe judgment of tbe court directing an issue and not refusing it. If plaintiffs bave objections to tbe form of tbe issue, or because tbe same is inadequate and not fully determinative of tbe different questions presented, they may preserve their rights by exceptions properly noted; but as tbe record now appears, their appeal has been prematurely taken, and tbe same must be dismissed. As said by Merrimon, J., in Hailey v. Gray, supra: “The judgment appealed from is not final, nor was it such as in any aspect of the Case would deprive tbe appellant of a substantial right by delaying tbe appeal until tbe final judgment shall be granted.”

Appeal dismissed.