Wright v. Asheville Pool & Gunite Co.

Court of Appeals of North Carolina

Wright v. Asheville Pool & Gunite Co.

259 S.E.2d 797, 44 N.C. App. 80, 1979 N.C. App. LEXIS 3145

CourtCourt of Appeals of North Carolina

DecidedNovember 20, 1979

DocketNo. 7828DC1150

StatusPublished

This text of 259 S.E.2d 797 (Wright v. Asheville Pool & Gunite Co.) 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

Wright v. Asheville Pool & Gunite Co., 259 S.E.2d 797, 44 N.C. App. 80, 1979 N.C. App. LEXIS 3145 (N.C. Ct. App. 1979).

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Opinion

VAUGHN, Judge.

The appeal is subject to dismissal for failure to comply with the Rules of Appellate Procedure. Appellants failed to comply with Rule 9(b)(l)(ix) which requires that the record on appeal shall contain “a copy of the notice of appeal, or of the appeal entry showing appeal taken orally, and of all other appeal entries relative to the perfecting of appeal.” We have, nevertheless, elected to consider the case on its merits.

On 25 July 1978, the trial judge granted defendant’s motion for directed verdict made at the close of plaintiffs’ evidence. [81]*81Plaintiffs do not bring forward the evidence and make no complaint about the judgment dismissing the action. The only exceptions brought forward relate to the denial of their pretrial motions for summary judgment. The exceptions fail to disclose prejudicial error. “Denial of a motion for summary judgment does not determine the merits of the case. It merely means that the case proceeds to trial.” Oil Co. v. Smith, 34 N.C. App. 324, 325, 237 S.E. 2d 882, 883 (1977).

There are no assignments of error directed to any part of the trial which resulted in judgment against the appellants. The judgment is affirmed.

Affirmed.

Judges ERWIN and HILL concur.

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VAUGHN, Judge.

The appeal is subject to dismissal for failure to comply with the Rules of Appellate Procedure. Appellants failed to comply with Rule 9(b)(l)(ix) which requires that the record on appeal shall contain “a copy of the notice of appeal, or of the appeal entry showing appeal taken orally, and of all other appeal entries relative to the perfecting of appeal.” We have, nevertheless, elected to consider the case on its merits.

On 25 July 1978, the trial judge granted defendant’s motion for directed verdict made at the close of plaintiffs’ evidence. [81]*81Plaintiffs do not bring forward the evidence and make no complaint about the judgment dismissing the action. The only exceptions brought forward relate to the denial of their pretrial motions for summary judgment. The exceptions fail to disclose prejudicial error. “Denial of a motion for summary judgment does not determine the merits of the case. It merely means that the case proceeds to trial.” Oil Co. v. Smith, 34 N.C. App. 324, 325, 237 S.E. 2d 882, 883 (1977).

There are no assignments of error directed to any part of the trial which resulted in judgment against the appellants. The judgment is affirmed.

Affirmed.

Judges ERWIN and HILL concur.

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259 S.E.2d 797, 44 N.C. App. 80, 1979 N.C. App. LEXIS 3145, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wright-v-asheville-pool-gunite-co-ncctapp-1979.

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