{
  "id": 11271518,
  "name": "W. H. GRIFFIN et als. v. M. N. CUPP",
  "name_abbreviation": "Griffin v. Cupp",
  "decision_date": "1914-10-21",
  "docket_number": "",
  "first_page": "96",
  "last_page": "96",
  "citations": [
    {
      "type": "official",
      "cite": "167 N.C. 96"
    }
  ],
  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [
    {
      "cite": "72 N. C., 502",
      "category": "reporters:state",
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      "cite": "116 N. C., 22",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8654157
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      "case_paths": [
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    {
      "cite": "122 N. C., 189",
      "category": "reporters:state",
      "reporter": "N.C.",
      "opinion_index": 0
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    {
      "cite": "102 N. C., 59",
      "category": "reporters:state",
      "reporter": "N.C.",
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        8649089
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      "opinion_index": 0,
      "case_paths": [
        "/nc/102/0059-01"
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    {
      "cite": "135 N. C., 381",
      "category": "reporters:state",
      "reporter": "N.C.",
      "opinion_index": 0
    },
    {
      "cite": "154 N. C., 269",
      "category": "reporters:state",
      "reporter": "N.C.",
      "opinion_index": 0
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  "last_updated": "2023-07-14T20:55:31.572596+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "W. H. GRIFFIN et als. v. M. N. CUPP."
    ],
    "opinions": [
      {
        "text": "ClaRK, C. J.\nThis was a motion on the part of the defendant Cupp to dismiss the action as to him. This being refused, he appealed. The appeal does not lie, for two reasons.\nNo appeal lies from a \u201crefusal to dismiss\u201d an action. Kerr v. Hicks, 154 N. C., 269; Johnson v. Reformers, 135 N. C., 381, and thirty-five-other cases cited in 1 Pell\u2019s Revisal at p. 313 under section 587. There are many other cases, besides, in which this oft-repeated ruling has been\u2019 applied without writing an opinion. The remedy of the defendant was to enter an exception, and if the final judgment is in his favor, the point would not have to be passed upon on appeal. But if the final judgment is against him, the point will be preserved by the exception entered, and will be considered on appeal. If this were not so, any defendant could get six months or more of delay by simply moving to-dismiss and appealing at once from a refusal of each motion.\nThe defendant relies upon the authority of Knowles v. R. R., 102 N. C., 59. That case simply holds that a motion to\u2019 dismiss because the complaint does not state a cause of action can be made at any time, even in this Court; which is true enough. But it does not hold that an appeal lies at once when the motion is made below and is denied.\nThe appeal also is premature and cannot be entertained, because it would be fragmentary. The motion to dismiss was made by only one of the defendants, and the trial of the whole case cannot be suspended until his motion can be passed on by appeal. He should have entered his exception, and if the final judgment does not embrace him, he will not need to appeal. Otherwise his exception can be reviewed on appeal from such judgment. McGehee v. Tucker, 122 N. C., 189; Hinton v. Ins. Co., 116 N. C., 22.\nAs Pearson, C. J., said in Hamlin v. Tucker, 72 N. C., 502, the Court will not \u201ctake two bites at a cherry.\u201d\nAppeal dismissed.",
        "type": "majority",
        "author": "ClaRK, C. J."
      }
    ],
    "attorneys": [
      "J. B. Cheshire, Jr., for plaintiffs.",
      "T. Lanier and J. W. Bunn for defendant Cupp."
    ],
    "corrections": "",
    "head_matter": "W. H. GRIFFIN et als. v. M. N. CUPP.\n(Filed 21 October, 1914.)\nAppeal and Error \u2014 Premature Appeals \u2014 Fragmentary Appeals \u2014 Objections and Exceptions \u2014 Practice.\nAn appeal will not lie from the refusal of the trial court to dismiss an action, the same being premature; nor by one of several defendants, for then the appeal will be fragmentary. The practice is for the movant to enter an exception which will preserve his position in the event of an adverse judgment in the lower court.\nAppeal by defendant from a refusal of a motion to dismiss by Allen,. J., May Term, 1914, of Wake.\nJ. B. Cheshire, Jr., for plaintiffs.\nT. Lanier and J. W. Bunn for defendant Cupp."
  },
  "file_name": "0096-01",
  "first_page_order": 150,
  "last_page_order": 150
}