Opinion
(Filed 1 January, 1935.)
1. Appeal and Error A d —
The refusal to dismiss an action for laches, or because barred by the statute of limitations, will not be disturbed on an appeal taken prior to final judgment.
2. Reference A a —
It is error for the trial court to order a compulsory reference before disposing of pleas in bar set up by defendants on the grounds of laches and the bar of the statute of limitations. C. S., 573.
APPEAL by defendants from Cranmer, J., at July Term, 1934, of ALAMANCE.
J. Elmer Long and Clarence Ross for plaintiff.
John S. Thomas and Sapp Sapp for defendants.
Civil action by administratrix of surviving partner for partnership accounting and for alleged fraudulent misapplication of partnership assets.
There was a motion to dismiss the action for laches, or because barred by the statute of limitations, which was overruled. Exception.
A compulsory reference was ordered, to which both sides excepted, and the defendants appeal.
The refusal to dismiss the action will not be disturbed on appeal (Griffin v. Bank, 205 N.C. 253, 171 S.E. 71), but there was error in ordering a compulsory reference without first disposing of the pleas in bar. C. S., 573; Garland v. Arrowood, 172 N.C. 591, 90 S.E. 766; Jones v. Wooten, 137 N.C. 421, 49 S.E. 915; Royster v. Wright, 118 N.C. 152, 24 S.E. 746. Error in this respect is confessed by appellee.
Error.