Beck v. Beck

221 S.E.2d 763, 28 N.C. App. 488, 1976 N.C. App. LEXIS 2738

• Court: Court of Appeals of North Carolina
• Decided: February 4, 1976
• Docket: No. 7522SC790
• Status: Published

Opinion

MARTIN, Judge.

Although the parties have raised no question concerning the matter, we note that the judgment from which the plaintiff purports to appeal adjudicates the “rights and liabilities of fewer than all the parties” and that it contains no determination that “there is no just reason for delay” within the meaning of the language of Rule 54(b) of the North Carolina Rules of Civil Procedure. Plaintiff’s action against defendant Board of Education is still pending.

“Under the North Carolina Rule, the trial court is granted the discretionary power to enter a final judgment as to one or more but fewer than all the . . . parties, ‘only if there is no just reason for delay and it is so determined in the judgment.’ (Emphasis added.) By making the express determination in the judgment that there is ‘no just reason for delay,’ the trial judge in effect certifies that the judgment is a final judgment and subject to immediate appeal.” Arnold v. Howard, 24 N.C. App. 255, 210 S.E. 2d 492 (1974).

In the absence of .such an express determination in the order, Rule 54(b) of the North. Carolina Rules of Civil Procedure makes “any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties,” interlocutory and not final. Leasing, Inc. v. Dan-Cleve Corp., 25 N.C. App. 18, 212 S.E. 2d 41 (1975) ; Raynor v. Mutual of Omaha, 24 N.C. App. 573, 211 S.E. 2d 458 (1975) ; Arnold v. Howard, supra.

For the reasons stated, the appeal is premature.

Appeal dismissed.

Judges Britt and Hedrick concur.