Willis v. Duke Power Co.

216 S.E.2d 732, 26 N.C. App. 598, 1975 N.C. App. LEXIS 2122

• Court: Court of Appeals of North Carolina
• Decided: June 16, 1975
• Docket: No. 7526SC227
• Status: Published

Opinion

BRITT, Judge.

Plaintiff contends the order from which defendant attempts to appeal is not appealable. We find merit in the contention.

It is well established in this State that no legal impediment bars a person, who is penalized as for contempt, from obtaining a review of the judgment entered against him in superior court by direct appeal. Luther v. Luther, 234 N.C. 429, 67 S.E. 2d 345 (1951).

In the present case, the 9 January 1975 contempt order expressly refrained from imposing a fine or penalty for contempt of court, provided defendant purge itself by complying with the terms of the orders. Until some punishment is imposed, such order is not final and does not affect a substantial right so as to render it directly appealable. 17 C.J.S., Contempt, § 114, p. 300. See generally Annot., 33 A.L.R. 3d 448, 564 (1970).

In Alexander v. United States, 201 U.S. 117, 121, 50 L.Ed. 686 (1906), the trial court directed witnesses to produce documents in compliance with a subpoena duces tecum and to answer questions propounded by the government in an anti-trust suit. Claiming that the information was irrelevant and self-incriminatory, the witnesses sought immediate review of the order. Holding that review was unavailable at that point, the Supreme Court of the United States declared:

“. . . Let the court go farther, and punish the witness for contempt of its order, — then arrives a right of review; and this is adequate for his protection without unduly impeding the progress of the case. . . .”

It is our opinion that the attempted appeal of defendant should be dismissed and it is so ordered.

Appeal dismissed.

Judges Clark and Arnold concur.