General Motors Acceptance Corp. v. Feder

184 S.E.2d 383, 12 N.C. App. 696, 1971 N.C. App. LEXIS 1440

• Court: Court of Appeals of North Carolina
• Decided: November 17, 1971
• Docket: No. 7126DC678
• Status: Published

Opinion

GRAHAM, Judge.

Plaintiff has filed a written motion in this court asking that defendant’s appeal be dismissed on the ground the order appealed from is an interlocutory order from which no immediate right of appeal lies.

Rule 4, Rules of Practice in the Court of Appeals of North Carolina, as amended by the Supreme Court on 20 January 1971, provides:

“4. The Court of Appeals will not entertain an appeal:

From the ruling on an interlocutory motion, unless provided for elsewhere. Any interested party may enter an exception to the ruling on the motion and present the question thus raised to this Court on the final appeal; provided, that when any interested party conceives that he will suffer substantial harm from the ruling on the motion, unless the ruling is reviewed by this Court prior to the trial of the cause on its merits, he may petition this Court for a writ of certiorari within thirty days from the date of the entry of the order ruling on the motion.”

An order denying a motion to dismiss an action is an interlocutory order from which no immediate right of appeal lies. Johnson v. Insurance Co., 215 N.C. 120, 1 S.E. 2d 381; Acorn v. Knitting Corp., 12 N.C. App. 266, 182 S.E. 2d 862. Plaintiff has not petitioned for a writ of certiorari nor has he attempted to show that the order in question affects a substantial right. See G.S. 1-277.

The order entered denying defendant’s motion to dismiss this action is an interlocutory order and plaintiff’s motion to dismiss defendant’s appeal from the order is allowed.

We have nevertheless reviewed the record and are of the opinion the trial court did not err in denying defendant’s motion to dismiss.

Appeal dismissed.

Chief Judge Mallard and Judge Hedrick concur.