Wachovia Bank & Trust Co., NA v. Smith

Court of Appeals of North Carolina

Wachovia Bank & Trust Co., NA v. Smith

210 S.E.2d 212, 24 N.C. App. 133, 1974 N.C. App. LEXIS 1952

CourtCourt of Appeals of North Carolina

DecidedDecember 4, 1974

Docket743SC659

StatusPublished

Cited by3 cases

This text of 210 S.E.2d 212 (Wachovia Bank & Trust Co., NA v. Smith) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Wachovia Bank & Trust Co., NA v. Smith, 210 S.E.2d 212, 24 N.C. App. 133, 1974 N.C. App. LEXIS 1952 (N.C. Ct. App. 1974).

Pincite

Opinion

HEDRICK, Judge.

Plaintiff filed a motion in this court to dismiss the defendants’ appeal on the grounds that it was from an interlocutory order not affecting a substantial right. Defendants filed answer to the motion contending that the appeal was authorized by G.S. 1-277, which in pertinent part provides:

“(a) 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; or which in effect determines the action, and prevents a judgment *135 from which an appeal might be taken; or discontinues the action, or grants or refuses a new trial.”

The substantial right claimed by the defendants is that they justifiably revoked their acceptance of the mobile home in accordance with the provisions of G.S. 25-2-608 and that pursuant to G.S. 25-2-711(3) they have a security interest in the mobile home. They further contend that they are not required to file a replevy bond in order to hold the property pending a trial.

In entering the order of seizure in the claim and delivery proceeding, the clerk of superior court did not and could not determine whether the defendants justifiably revoked their acceptance of the mobile home or whether the defendants retained a security interest therein. Likewise, G.S. 1-474 only gives the judge of the superior court the authority to review the action of the clerk in issuing or refusing to issue the order of seizure. The questions raised by the defendants can be decided only when the case is heard on its merits. No substantial right of the defendants has yet been judicially determined. Furthermore, whatever interest the defendants have in the mobile home is amply protected by plaintiff’s undertaking filed in the claim and delivery proceeding pursuant to G.S. 1-475. . ,

The appeal is

Dismissed.

Judges Britt and Martin concur.

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HEDRICK, Judge.

Plaintiff filed a motion in this court to dismiss the defendants’ appeal on the grounds that it was from an interlocutory order not affecting a substantial right. Defendants filed answer to the motion contending that the appeal was authorized by G.S. 1-277, which in pertinent part provides:

“(a) 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; or which in effect determines the action, and prevents a judgment *135 from which an appeal might be taken; or discontinues the action, or grants or refuses a new trial.”

The substantial right claimed by the defendants is that they justifiably revoked their acceptance of the mobile home in accordance with the provisions of G.S. 25-2-608 and that pursuant to G.S. 25-2-711(3) they have a security interest in the mobile home. They further contend that they are not required to file a replevy bond in order to hold the property pending a trial.

In entering the order of seizure in the claim and delivery proceeding, the clerk of superior court did not and could not determine whether the defendants justifiably revoked their acceptance of the mobile home or whether the defendants retained a security interest therein. Likewise, G.S. 1-474 only gives the judge of the superior court the authority to review the action of the clerk in issuing or refusing to issue the order of seizure. The questions raised by the defendants can be decided only when the case is heard on its merits. No substantial right of the defendants has yet been judicially determined. Furthermore, whatever interest the defendants have in the mobile home is amply protected by plaintiff’s undertaking filed in the claim and delivery proceeding pursuant to G.S. 1-475. . ,

The appeal is

Dismissed.

Judges Britt and Martin concur.

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210 S.E.2d 212, 24 N.C. App. 133, 1974 N.C. App. LEXIS 1952, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wachovia-bank-trust-co-na-v-smith-ncctapp-1974.

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