First-Citizens Bank & Trust Co. v. R & G Construction Co.

Court of Appeals of North Carolina

First-Citizens Bank & Trust Co. v. R & G Construction Co.

210 S.E.2d 97, 24 N.C. App. 131, 1974 N.C. App. LEXIS 1951

Court of Appeals of North Carolina·Decided December 4, 1974·No. 743DC853·Published·Cited by 10 cases

Opinion

HEDRICK, Judge.

As a general rule an order setting aside or refusing to sét aside an entry of default where judgment has not been entered is not a final order and is, therefore, not appealable. Annot., 8 A.L.R. 3d 1272, 1278 (1966) ; 4 Am. Jur. 2d, Appeal and Error, § 127 (1962).

Judge Phillips’ order of 25 June 1973 is in no sense a final judgment. It is, at most, an entry of default, “an interlocutory act looking toward the subsequent entry of a final judgment by default and is more in the nature of a formal matter. . . .” Whaley v. Rhodes, 10 N.C. App. 109, 111, 177 S.E. 2d 735, 736 (1970) (citation omitted). Therefore, the appeal from the order denying defendant’s motion to set aside the entry of default is *133 premature. An exception to such an interlocutory order, properly preserved, may be reviewed on an appeal from the final judgment.

Appeal dismissed.

Chief Judge Brock and Judge Campbell concur.

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HEDRICK, Judge.

As a general rule an order setting aside or refusing to sét aside an entry of default where judgment has not been entered is not a final order and is, therefore, not appealable. Annot., 8 A.L.R. 3d 1272, 1278 (1966) ; 4 Am. Jur. 2d, Appeal and Error, § 127 (1962).

Judge Phillips’ order of 25 June 1973 is in no sense a final judgment. It is, at most, an entry of default, “an interlocutory act looking toward the subsequent entry of a final judgment by default and is more in the nature of a formal matter. . . .” Whaley v. Rhodes, 10 N.C. App. 109, 111, 177 S.E. 2d 735, 736 (1970) (citation omitted). Therefore, the appeal from the order denying defendant’s motion to set aside the entry of default is *133 premature. An exception to such an interlocutory order, properly preserved, may be reviewed on an appeal from the final judgment.

Appeal dismissed.

Chief Judge Brock and Judge Campbell concur.

First-Citizens Bank & Trust Co. v. R & G Construction Co., 210 S.E.2d 97, 24 N.C. App. 131, 1974 N.C. App. LEXIS 1951 (N.C. Ct. App. 1974).

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Opinion

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