Williams v. Blount

Court of Appeals of North Carolina

Williams v. Blount

187 S.E.2d 464, 14 N.C. App. 139, 1972 N.C. App. LEXIS 2060

CourtCourt of Appeals of North Carolina

DecidedMarch 29, 1972

DocketNo. 7210SC14

StatusPublished

This text of 187 S.E.2d 464 (Williams v. Blount) 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

Williams v. Blount, 187 S.E.2d 464, 14 N.C. App. 139, 1972 N.C. App. LEXIS 2060 (N.C. Ct. App. 1972).

Pincite

Opinion

VAUGHN, Judge.

Defendants are appealing from an order entered allowing plaintiff to examine defendants for the purpose of securing information to draw a complaint. Appeal from such an order is premature and subject to dismissal. Tillis v. Cotton Mills, 238 N.C. 124, 76 S.E. 2d 376; Brown v. Clement Co., 203 N.C. 508, 166 S.E. 515; Johnson v. Mills Company, 196 N.C. 93, 144 S.E. 534. However, this Court can, and in this case will, in its discretion, consider the appeal on its merits. Fox v. Yarborough, 225 N.C. 606, 35 S.E. 2d 885; Knight v. Little, 217 N.C. 681, 9 S.E. 2d 377; Bohannon v. Trust Co., 210 N.C. 679, 188 S.E. 390.

[141]*141Defendants contend that plaintiff’s application and affidavit fail to meet the requirements of former G.S. 1-568.10 under which plaintiff is moving. Such assignments of error as are brought forward and which are supported by proper exceptions fail to disclose prejudicial error in the order allowing the examination.

Among other things, defendants contend that the enactment of the North Carolina Rules of Civil Procedure, and their implementation as of 1 January 1970, serves to negate any action taken prior to that date. Defendants specifically contend that plaintiff has not commenced an action since, under Rule 3, an action is commenced by filing a complaint, which plaintiff has not done. As the time this action was initiated in 1968 an action was commenced by the issuance of a summons in accordance with former G.S. 1-14. Plaintiff successfully commenced this action as of 12 July 1968 by causing summons to be issued against the defendants and the subsequent enactment of the North Carolina Rules of Civil Procedure does not require that she recommence her action.

Defendants further contend that in order for plaintiff to secure the information requested in her original application and affidavit for adverse examination she must now move under either Rule 26, relating to the taking of depositions after the commencement of an action, or Rule 27 (b), relating to the taking of depositions in preparation for filing a complaint. We find no merit in this contention. On 12 July 1968 plaintiff made application for an adverse examination pursuant to former G.S. 1-568.10. On the same date an order was entered allowing the examination. Upon entry of that order, plaintiff had a vested right to conduct the examination. The subsequent enactment of the Rules of Civil Procedure did not divest her of this right. See Fishel & Taylor v. Church, 13 N.C. App. 238, 185 S.E. 2d 322.

Affirmed.

Judges Brock and Hedrick concur.

Free access — add to your briefcase to read the full text and ask questions with AI

VAUGHN, Judge.

Defendants are appealing from an order entered allowing plaintiff to examine defendants for the purpose of securing information to draw a complaint. Appeal from such an order is premature and subject to dismissal. Tillis v. Cotton Mills, 238 N.C. 124, 76 S.E. 2d 376; Brown v. Clement Co., 203 N.C. 508, 166 S.E. 515; Johnson v. Mills Company, 196 N.C. 93, 144 S.E. 534. However, this Court can, and in this case will, in its discretion, consider the appeal on its merits. Fox v. Yarborough, 225 N.C. 606, 35 S.E. 2d 885; Knight v. Little, 217 N.C. 681, 9 S.E. 2d 377; Bohannon v. Trust Co., 210 N.C. 679, 188 S.E. 390.

[141]*141Defendants contend that plaintiff’s application and affidavit fail to meet the requirements of former G.S. 1-568.10 under which plaintiff is moving. Such assignments of error as are brought forward and which are supported by proper exceptions fail to disclose prejudicial error in the order allowing the examination.

Among other things, defendants contend that the enactment of the North Carolina Rules of Civil Procedure, and their implementation as of 1 January 1970, serves to negate any action taken prior to that date. Defendants specifically contend that plaintiff has not commenced an action since, under Rule 3, an action is commenced by filing a complaint, which plaintiff has not done. As the time this action was initiated in 1968 an action was commenced by the issuance of a summons in accordance with former G.S. 1-14. Plaintiff successfully commenced this action as of 12 July 1968 by causing summons to be issued against the defendants and the subsequent enactment of the North Carolina Rules of Civil Procedure does not require that she recommence her action.

Defendants further contend that in order for plaintiff to secure the information requested in her original application and affidavit for adverse examination she must now move under either Rule 26, relating to the taking of depositions after the commencement of an action, or Rule 27 (b), relating to the taking of depositions in preparation for filing a complaint. We find no merit in this contention. On 12 July 1968 plaintiff made application for an adverse examination pursuant to former G.S. 1-568.10. On the same date an order was entered allowing the examination. Upon entry of that order, plaintiff had a vested right to conduct the examination. The subsequent enactment of the Rules of Civil Procedure did not divest her of this right. See Fishel & Taylor v. Church, 13 N.C. App. 238, 185 S.E. 2d 322.

Affirmed.

Judges Brock and Hedrick concur.

Cite This Page — Counsel Stack

Bluebook (online)

187 S.E.2d 464, 14 N.C. App. 139, 1972 N.C. App. LEXIS 2060, Counsel Stack Legal Research, https://law.counselstack.com/opinion/williams-v-blount-ncctapp-1972.

Opinion

Related

Cite This Page — Counsel Stack