Starmount Co. v. City of Greensboro

Court of Appeals of North Carolina

Starmount Co. v. City of Greensboro

255 S.E.2d 267, 41 N.C. App. 591, 1979 N.C. App. LEXIS 2656

Court of Appeals of North Carolina·Decided June 5, 1979·No. 7818SC283·Published·Cited by 5 cases

Opinion

WEBB, Judge.

At the outset, we are faced with a motion to dismiss this appeal as being from interlocutory orders of the trial court and, as such, fragmentary and premature. G.S. 1-277(a) provides:

An appeal may be taken from every judicial order or determination of a judge of a superior or district court, upon or involving a matter of law or legal inference, whether made in or out of session, which affects a substantial right claimed in any action or proceeding; ....

*593 The question before this Court is whether the order of Judge Walker affected a substantial right claimed by the defendant. There are few cases to which we can look for precedent. In Tennessee-Carolina Transportation, Inc. v. Strick Corp., 291 N.C. 618, 231 S.E. 2d 597 (1977), the Supreme Court held an appeal from the refusal to let a party take a deposition was not premature if there was a chance the deponent might give evidence crucial to the defense of the case. We do not believe the information denied the defendant in the case sub judice is crucial to its defense. The defendant has received answers to interrogatories which give it detailed information as to all written and oral transactions conducted by plaintiff in regard to the subject of the controversy. From an examination of the record, we cannot say any of the interrogatories which were not answered by plaintiff would have provided defendant with information which was not given it by those that were answered. We hold the superior court did not abuse its discretion in not requiring these interrogatories be answered and the appeal should be dismissed. Defendant will have its exceptions to the ruling of the superior court on an appeal.

In light of our decision in this case, we do not pass on the question of whether the defendant, by filing the second set of interrogatories, was asking one superior court judge to overrule another superior court judge.

Appeal dismissed.

Judges Clark and Mitchell concur.

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WEBB, Judge.

At the outset, we are faced with a motion to dismiss this appeal as being from interlocutory orders of the trial court and, as such, fragmentary and premature. G.S. 1-277(a) provides:

An appeal may be taken from every judicial order or determination of a judge of a superior or district court, upon or involving a matter of law or legal inference, whether made in or out of session, which affects a substantial right claimed in any action or proceeding; ....

*593 The question before this Court is whether the order of Judge Walker affected a substantial right claimed by the defendant. There are few cases to which we can look for precedent. In Tennessee-Carolina Transportation, Inc. v. Strick Corp., 291 N.C. 618, 231 S.E. 2d 597 (1977), the Supreme Court held an appeal from the refusal to let a party take a deposition was not premature if there was a chance the deponent might give evidence crucial to the defense of the case. We do not believe the information denied the defendant in the case sub judice is crucial to its defense. The defendant has received answers to interrogatories which give it detailed information as to all written and oral transactions conducted by plaintiff in regard to the subject of the controversy. From an examination of the record, we cannot say any of the interrogatories which were not answered by plaintiff would have provided defendant with information which was not given it by those that were answered. We hold the superior court did not abuse its discretion in not requiring these interrogatories be answered and the appeal should be dismissed. Defendant will have its exceptions to the ruling of the superior court on an appeal.

In light of our decision in this case, we do not pass on the question of whether the defendant, by filing the second set of interrogatories, was asking one superior court judge to overrule another superior court judge.

Appeal dismissed.

Judges Clark and Mitchell concur.

Starmount Co. v. City of Greensboro, 255 S.E.2d 267, 41 N.C. App. 591, 1979 N.C. App. LEXIS 2656 (N.C. Ct. App. 1979).

Pincite

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Opinion

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