Equitable Leasing Corp. v. Kingsmen Productions, Inc.

220 S.E.2d 95, 27 N.C. App. 661, 1975 N.C. App. LEXIS 1937

• Court: Court of Appeals of North Carolina
• Decided: December 3, 1975
• Docket: No. 7528DC627
• Status: Published

Opinion

HEDRICK, Judge.

This appeal is subject to dismissal, because the judgment from which the appeal is taken purportedly “adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties” and the trial court did not find there was “no just reason for delay.” G.S. 1A-1, Rule 54(b) ; Rorie v. Blackwelder, 26 N.C. App. 195, 215 S.E. 2d 397 (1975) ; Durham v. Creech, 25 N.C. App. 721, 214 S.E. 2d 612 (1975) ; Arnold v. Howard, 24 N.C. App. 255, 210 S.E. 2d 492 (1974).

Under the circumstances here presented, summary judgment for plaintiff is not a final judgment, and it may be revised by the trial court at any time before the entry of a final judgment adjudicating defendant’s counterclaim. Durham v. Creech, supra; Rule 54(b).

With respect to the propriety of a directed verdict or summary judgment for the party having the burden of proof where the credibility of such party’s witnesses is at issue, see Cutts v. Casey, 278 N.C. 390, 180 S.E. 2d 297 (1971), and Shearin v. Indemnity Co., 27 N.C. App. 88, 218 S.E. 2d 207 (1975).

For the reasons stated, this appeal is dismissed and the cause is remanded to the District Court for further proceedings.

Appeal dismissed.

Chief Judge Brock and Judge Clark concur.