Fraser v. Di Santi

331 S.E.2d 217, 75 N.C. App. 654, 1985 N.C. App. LEXIS 3703

• Court: Court of Appeals of North Carolina
• Decided: July 2, 1985
• Docket: 8424SC1235
• Status: Published

Opinion

EAGLES, Judge.

Defendants purport to bring forth two assignments of error on appeal: (1) the trial court erred in denying defendants’ motions to dismiss for failure to bring the action in the name of the real party in interest and failure to join a necessary party and (2) the trial court erred in denying defendants’ motion for summary judgment.

An appeal does not lie from an interlocutory order unless the order affects some substantial right claimed by the appellant and will work an injury to him if not corrected before an appeal from the final judgment. Veazey v. Durham, 231 N.C. 357, 57 S.E. 2d 377 (1950). The reason for this rule is to prevent fragmentary, premature and unnecessary appeals by permitting the trial court to bring the case to final judgment before it is presented to the appellate courts. Waters v. Personnel, Inc., 294 N.C. 200, 240 S.E. 2d 338 (1978). The order entered by the trial court in this case denying defendants’ motions to dismiss and for summary judgment was not a final determination of defendants’ rights. Auction Company v. Myers, 40 N.C. App. 570, 253 S.E. 2d 362 (1979) (denial of motions to dismiss); Hill v. Smith, 38 N.C. App. 625, 248 S.E. 2d 455 (1978) (denial of motion for summary judgment). This is true even though the trial court, in its appeal entries, states that “there is no just reason to delay the appeal.” Cook v. Tobacco Co., 47 N.C. App. 187, 266 S.E. 2d 754 (1980). This finding by the trial court must be construed in light of G.S. 7A-27 and our well-settled case law concerning interlocutory appeals. Further, this appeal does not affect defendants’ substantial rights. The appeal cannot lie as of right to this court.

Appeal dismissed.

Judges Becton and PHILLIPS concur.