State ex rel. North Carolina Milk Commission v. Pet, Inc.

315 S.E.2d 529, 68 N.C. App. 701, 1984 N.C. App. LEXIS 3599

• Court: Court of Appeals of North Carolina
• Decided: June 5, 1984
• Docket: No. 8310SC613
• Status: Published

Opinion

WEBB, Judge.

The Milk Commission argues it was error for the superior court to amend an order in a 1980 case which amendment affected action taken by it in 1983. It contends its 1983 action is a separate case and the defendant must appeal from that order for a de novo hearing. The Milk Commission says the superior court has enjoined it from performing its statutory duties without any compliance with the requirements for an injunction.

We hold that the court did not err by entering an order in the action which was before it. The information requested by the Commission in the letter dated 17 November 1978 is essentially the same information the Commission requested pursuant to 4 NCAC 7 .0514, although the later request was in more detail. The request for information in each instance was to determine whether Pet was in compliance with the cost provisions of the law. See G.S. 106-266.19. We believe the superior court had jurisdiction to amend the 1980 order as it did.

Having determined the superior court had jurisdiction to amend the order, we hold that an appeal on the merits of the court’s determination is premature. The order does not finally dispose of the case and is interlocutory. See Veazey v. Durham, 231 N.C. 357, 57 S.E. 2d 377, reh’g denied, 232 N.C. 744, 59 S.E. 2d 429 (1950). We do not believe it affects a substantial right claimed by the plaintiff which will work an injury to it if not corrected before an appeal from a final judgment. The order maintains the status quo until the case is determined on its merits.

For the reasons stated in this opinion, we hold that the appeal should be dismissed.

Appeal dismissed.

Judges BECTON and EAGLES concur.