Knight v. Duke Power Co.

237 S.E.2d 574, 34 N.C. App. 218, 1977 N.C. App. LEXIS 1642

• Court: Court of Appeals of North Carolina
• Decided: October 5, 1977
• Docket: 7617SC1053
• Status: Published

Opinion

HEDRICK, Judge.

It is well-established that pre-trial orders entered pursuant to G.S. 1-169.1, now G.S. 1A-1, Rule 16, are interlocutory and unap-pealable. Amodeo v. Beverly, 13 N.C. App. 244, 184 S.E. 2d 922 (1971); Smith v. Rockingham, 268 N.C. 697, 151 S.E. 2d 568 (1966); Whitaker v. Beasley, 261 N.C. 733, 136 S.E. 2d 127 (1964); Green v. Insurance Co., 250 N.C. 730, 110 S.E. 2d 321 (1959). In Whitaker v. Beasley, supra, at 734-5, 136 S.E. 2d at 128, our Supreme Court said:

“A pre-trial conference under G.S. 1-169.1 is just what the name implies. Its purpose is to consider specifics mentioned in the statute; among them, motions to amend pleadings, issues, references, admissions, judicial notice, and other matters which may aid in the disposition of the cause. ... It is not a grant of authority to hear and determine disputed facts. Its order is interlocutory in nature. Green v. Ins. Co., 250 N.C. 730, 110 S.E. 2d 321. ‘Following the hearing the judge shall enter an order reciting the stipulations made and the action taken. Such order shall control the subsequent course of the case unless in the discretion of the trial judge the ends of justice require its modification.’ ”

Judge Walker’s pre-trial order in this case declaring certain evidence inadmissible is clearly indeterminate and subject to later modification. Neither the judge nor the parties before trial can anticipate the various circumstances which may arise from the evidence at trial which necessarily determines the ruling of the trial judge on the admissibility or exclusion of evidence. A pre-trial ruling on the admissibility or exclusion of evidence must be treated simply as an expression of one judge’s opinion based on the limited information available at the time. Appellate review of such an indeterminate opinion would result in fragmented trials and multiple appeals, and would defeat all efforts to expedite the administration of justice.

All parties cite Highway Commission v. Nuckles, 271 N.C. 1, 155 S.E. 2d 772 (1967), in support of their contention that Judge Walker’s pre-trial order is reviewable. Suffice it to say their reliance upon the cited case is misplaced since the cases are clearly distinguishable.

Since both parties requested the judge at the pre-trial conference to make a ruling as to the admissibility of the evidence, and both parties requested that this Court review Judge Walker’s decision on its merits, we think it only fair that the cost of this purported appeal be taxed by the clerk, one half to the plaintiffs and one half to the defendants.

Appeal dismissed.

Judges Vaughn and Clark concur.