Parker Oil Co. v. Smith

237 S.E.2d 882, 34 N.C. App. 324, 1977 N.C. App. LEXIS 1670

Opinion

ARNOLD, Judge.

Appellant contends that the trial court erred in denying its motion for summary judgment against defendant Smith. However, that question is not before us. A motion for summary judgment is simply a pretrial motion. Denial of a motion for summary judg ment does not determine the merits of the case. It merely means that the case proceeds to trial. Annot. 15 A.L.R. 3d 899 (1967).

Denial of a motion for summary judgment ordinarily does not affect a substantial right so that appeal may be taken from the interlocutory order. See, e.g. Stonestreet v. Motors, Inc., 18 N.C. App. 527, 197 S.E. 2d 579 (1973). In Motyka v. Nappier, 9 N.C. App. 579, 176 S.E. 2d 858 (1970), this Court properly dismissed an attempted appeal from the denial of a motion for summary judgment. However, dictum at p. 582 of Motyka (176 S.E. 2d at 859), that the moving party is free to preserve his exception to the denial of a motion for summary judgment for consideration on appeal from final judgment, should be disregarded.

In this case, no error is assigned to any part of the trial which resulted in a jury verdict and judgment against the appellant. Judgment is therefore

Affirmed.

Judges Parker and Martin concur.