#### FARMERS BANK, Incorporated, v. MERCHANTS AND FARMERS BANK, Incorporated, TYRRELL MANUFACTURING COMPANY, Incorporated, D. O. NEWBERRY, J. H. SWAIN, J. H. BATEMAN, S. M. COMBS, and A. MELSON.

(Filed 15 March, 1933.)

1. Appéa.l and Error A d — Appeal in this case held premature as being from interlocutory order not affecting substantial rights.

Where a cause is referred to a referee and exceptions taken to his report, and the cause is continued for hearing upon the exceptions and the matter remains passive for several years, an order of the trial court allowing a certain sum to the referee in payment of his services is an interlocutory order in a pending cause within the power of the trial court which is not reviewable, and the order will be affirmed on defendant’s appeal, no substantial right of the parties being affected and the matter being reviewable upon appeal from final judgment upon exceptions duly taken.

2. References E b—

The claim of a referee for payment of services rendered in the cause which is still pending in the courts upon exceptions to his report is not barred by C. S., 441(8), nor is C. S., 1226, applicable thereto.

Stacy, O. J., and Brogden, J., dissenting.

Appeal by defendants S. M. Combs and J. H. Swain from Moore, Special Judge, at December Term, 1932, of Tyebell.

Affirmed.

The agreement of facts are somewhat vague. In 1921 a suit was brought by plaintiff against the defendants. A judgment was rendered for plaintiffs against defendants by Judge George W. Connor, January Term, 1923, Tyrrell Superior Court. In that judgment is the following: “It is further, by consent, ordered, decreed and adjudged that all matters in controversy between the defendants as endorsers and the defendant trustee, Merchants and Farmers Bank of Columbia, he and the same is hereby referred to W. S. Privott, who shall state an account between the defendants, showing what amount, if any, is in the hands of the trustee or ought to be in his hands from the sale of any property made under deed of trust set out above or the assignment, that the sale made by the said trustee be what is known as the Branning property and the personal property conveyed either in the deed of assignment or deed of trust is hereby ratified and that the attempted sale of the real estate is hereby annulled. The difference between the defendants endorsers is to be taken in account by the said referee in staling his account, showing what money, if any, either one has which belongs to be credited or accounted for on this indebtedness, that the defendants, or either of them upon motion before the referee, may have the right to file any additional pleadings as to their accounts, showing their claims as to any differences to the same applicable to this indebtedness, that the referee shall give *379notice to all parties interested ten days before tbe bearing and make bis report at tbe next term of tbis Court witb bis findings of fact and conclusions of law.” “W. S. Privott under order -of tbe court duly beard tbe contentions between tbe parties and made bis report back to tbe court as of tbe Term, 1924. . . . Tbat, no order bas been signed by any judge allowing or fixing tbe fee of tbe said W. S. Privott. . . . Tbat, W. S. Privott made bis motion at tbe December Term, 1932, of tbe Superior Court of Tyrrell County, asking tbat a fee be allowed bim in tbis action, after giving due notice. Tbat, on 5 January, 1925, tbe said W. S. Privott wrote tbe clerk of tbe Superior Court of Tyrrell County, in wbicb be stated in part, tbe following: ‘Will you please let us know tbe exact status of tbe above entitled action? Have tbe exceptions filed to my report been passed on by tbe judge? If so, did be approve my bill as referee, and for wbat amount?’ Tbe referee submitted witb bis report to tbe court a bill for services and expenses as referee in connection witb tbe above entitled action for $500, wbicb bill was witb tbe referee’s report and in tbe clerk’s bands since tbat time. . . . There was an order signed by Judge F. A. Daniels, at tbe April Term, 1927, of tbe Tyrrell County Superior Court, in which it was ordered that the hearing upon the exceptions filed to the report of the referee and all other matters open for determination in this cause he and the same were continued. And, no hearing has ever heen held on the exceptions to the report of the referee, and the said report has never heen confirmed, but tbe judgment rendered at tbe January Term, 1923, bas been paid, as above mentioned, and tbe referee bas bad no personal notice of any settlement of tbe matters submitted to bim for adjudication.”

The court below made an order tbat tbe clerk tax as cost a fee to W. S. Privott, referee, in tbe sum of $200, to be paid by tbe defendants. W. S. Privott lived at Edenton, N. O.

Privott & Privott for appellee.

PL. L. Swain for appellants.

GlaeksoN, J.

It is not disputed on tbe record tbat W. S. Privott bad rendered bis bill as referee and bad performed tbe full duties required of bim by tbe court as referee and bas never been paid. There were exceptions filed to tbe report of tbe referee and tbe matter remained passive until April Term, 1927. At tbat term tbe cause was continued to bear exceptions to tbe referee’s report and no bearing bas ever been held on tbe exceptions to tbe report of tbe referee. Tbe report of tbe referee bas never been passed upon by tbe court below and tbe case seems now to be on tbe docket for bearing on tbe exceptions to tbe referee’s report.

*380In Coburn v. Comrs., 191 N. C., at p. 74, is the following: “ This cause is retained upon tbe civil docket of Swain County to the end that the court may make such further orders or decrees as may become necessary for the protection of the rights of all parties.’ This consent judgment left a discretionary power in the court to make such orders or decrees for the protection of the rights of all parties

In N. C. Practice & Procedure in Civil Cases (McIntosh), part sec. 649, at p. 733, speaking to the subject, we find: “Interlocutory judgments or orders are under the control of the court, and may be corrected or changed at any time before final judgment, to meet the exigencies of the case.”

In Hosiery Mill v. Hosiery Mills, 198 N. C., at p. 598, we find: “Ordinarily, no appeal lies to this Court from an interlocutory order made in an action pending therein by the Superior Court. An exception to the order, taken in apt time, will be considered on an appeal from the final judgment in the action, when such exception is duly presented on said appeal. If, however, an interlocutory order affects a substantial right of a party to the action, and is prejudicial to such right, he may appeal therefrom to this Court, and his appeal will be heard, and decided on its merits. Skinner v. Carter, 108 N. C., 106, 12 S. E., 908. If the order does not affect a substantial right of the appellant, his appeal therefrom to this Court will be dismissed. Warren v. Stancill, 117 N. C., 112, 23 S. E., 216; Leak v. Covington, 95 N. C., 194.”

We do not think C. S., 441, sec. 8, which is as follows, is applicable: “For fees due to a clerk, sheriff or other officer, by the judgment of the court; within three years from the rendition of the judgment, or the issuing of the last execution thereon.” Nor is C. S., 1226 apjdicable.

From the meager record, we conclude that the cause was still pending and the court below had the power to render the judgment, which is

Affirmed.

Staoy, C. J., and BeogdeN, J., dissenting.