#### HESTER A. McKINNEY v. L. H. DILL and Wife, MAY DILL.

(Filed 25 February, 1948.)

Appeal and Error § 2—

Tbe court, being of opinion that plaintiff’s proof failed to correspond in some respects with her complaint, ordered a mistrial. Defendants appealed for failure of the court to rule on their motions to nonsuit, and plaintiff appealed on account of the statement of the court that the complaint needed amendment to conform to the proof. Held: Both appeals are premature and are dismissed.

Appeal by plaintiff and defendants from Nettles, J., at September Term, 1947, of MadisoN.

Both appeals dismissed.

Carl B. Stuart for plaintiff.

J. M. Bailey, Jr., for defendants.

Per Curiam.

At tbe close of plaintiff’s evidence tbe defendants moved for judgment of nonsuit. Tbe trial judge, without ruling on tbe motion, expressed tbe view that tbe plaintiff’s evidence did not in some respects correspond with her complaint, and in bis discretion and ex mero motu withdrew a juror and ordered a mistrial, with permission to tbe plaintiff to amend her complaint. Tbe defendants appealed, for that tbe court failed to rule on their motion to nonsuit, and plaintiff likewise appealed on account of tbe statement by tbe court that tbe plaintiff’s complaint needed amendment to conform to tbe proof.

It is apparent that both appeals are premature, and must be dismissed. No judgment or final order, or order affecting a substantial right, has been entered below, and tbe cause remains on tbe dopket of tbe Superior Court of Madison for such proceedings as may seem advisable to tbe parties. Johnson v. Ins. Co., 215 N. C., 120, 1 S. E. (2d), 381. See also Ten' Broeck v. Orchard, 79 N. C., 518.

*540Tbe defendants’ demurrer ore terms, interposed for the first time in tbis Court, is not presently presented.

Plaintiff’s appeal: Dismissed.

Defendant’s appeal: Dismissed.