Cooper v. Wyman - 122 N.C. 784, 29 S.E. 947 (1898)

Rule:

No appeal lies from a refusal to dismiss an action. The presumption is always that a judge correctly refused the motion to dismiss, and if it is in doubt the point can be decided on the appeal from the final judgment. 

Facts:

Plaintiff brought an action against defendant, a non-resident, and had the summons served upon defendant while he was in the state to appear as a witness on his own behalf in another proceeding in which he was a litigant. Defendant entered a special appearance for the purpose of filing a motion to dismiss plaintiff's action because service of the summons under such conditions was improper. The trial court denied the motion and defendant appealed.

Issue:

Would an appeal lie from the trial court’s refusal to dismiss the plaintiff’s action? 

Answer:

No.

Conclusion:

The court dismissed the appeal, finding that no appeal lied from the refusal to dismiss the action. The presumption was that the trial court correctly refused the motion to dismiss, and if it was in doubt the point could be decided on appeal from the final judgment. The court did hold that service of process upon defendant under the circumstances described was not void but voidable. Defendant correctly made a special appearance to set aside the return of service. Upon denial of the motion defendant was required to request findings of fact for the record together and to file an exception to the ruling so that it could be reviewed on appeal after the final judgment.