
    J. M. GREENLEE, Administrator, v. J. HARVEY GREENLEE et al.
    (Filed 19 May, 1909.)
    1. Reference — Exceptions to Report — Right of Jury Trial — Exceptions Withdrawn.
    'A plaintiff, in an action referred under the statute, who has filed exceptions, hut made no demand for a jury trial, cannot, by virtue of the consent of the defendant that a jury trial be had under the exceptions, prevent such other party withdrawing -his own exceptions, upon which he had made demand, and force him to a jury trial.
    
      2. Appeal and Error — Reference—Exceptions — Fragmentary Appeal — Procedure.
    An appeal from an order permitting a party to an action to withdraw exceptions to a referee’s report, and his demand for a jury trial, is premature. The objecting party should note his exception, to be reviewed on appeal from final judgment.
    AotioN heard, upon report of referee; by Ferguson, J., at September Term, 1908, of McDowell.
    Plaintiff appealed.
    
      A. C. Avery and W. T. Morgan for plaintiff.
    
      Pless & Winborne for defendants.
   Clark, C. J.

The defendants filed exceptions to tlie report of the referee and demanded a jury trial. The plaintiff filed exceptions, but made no such demand. The defendants asked leave to withdraw their exceptions and demand for jury trial, and that the plaintiff’s exceptions be heard. The plaintiff insisted that although he had not asked for a jury trial and had no exceptions which he- desired submitted to the jury, yet, because defendants had made such demand and the plaintiff had consented to defendants having it, the court could not permit the withdrawal of either the exceptions or the demand for the jury, and insisted that, although he was satisfied with the findings of fact, the defendants' having said they were not, they had to fight further, whether they so desired or not.

This is the whole case. The plaintiff withdrew his objection to the defendants’ demand for a jury trial. If this had any effect it was against the plaintiff. It could not estop the defendants from withdrawing their exceptions or. their demand for a jury trial.

The plaintiff, having excepted to the order permitting the defendants to withdraw their exceptions and their demand for a jury, insisted on an immediate appeal. His Honor properly ruled that no appeal lay from such order, but that the plaintiff could note his exception, which has now come up for review on this appeal from the final judgment. Clark’s Code (3d Ed.), see. 548, pp. 733, 734.

Affirmed.  