Acorn v. Jones Knitting Corp.

• Decision Date: 18 August 1971
• Docket Number: No. 7112SC308,7112SC308
• Citation: 182 S.E.2d 862,12 N.C.App. 266
• Parties: Robert M. ACORN et al., Plaintiffs, v. JONES KNITTING CORPORATION, Defendant.
• Court: North Carolina Court of Appeals

Page 862

182 S.E.2d 862

12 N.C.App. 266

Robert M. ACORN et al., Plaintiffs, v. JONES KNITTING CORPORATION, Defendant.

No. 7112SC308.

Court of Appeals of North Carolina.

Aug. 18, 1971.

Certiorari Denied by Supreme Court Oct. 5, 1971.

McLendon, Brim, Brooks, Pierce & Daniels by Claude C. Pierce, Jordan, Wright, Nichols, Caffrey & Hill by Welch Jordan, Greensboro, and Anderson, Nimocks & Broadfoot by Henry L. Anderson, Jr., Fayetteville, for plaintiff appellees.

Smith, Moore, Smith, Schell & Hunter by Martin N. Erwin, Greensboro, for defendant appellant.

MORRIS, Judge.

On appeal defendant states that at oral argument plaintiffs presented an affidavit representing that all partners of A. M. Pullen and Company have been named as plaintiffs in this action and that defendant is unable to refute this affidavit. Therefore, defendant states that it 'withdraws its motion to dismiss for failure to join necessary and indispensable parties.'

Plaintiffs have filed a written motion in this Court that the appeal be dismissed for that the order entered by Judge Bailey denying defendant's motion to dismiss and motion to stay is an interlocutory order from which no right of immediate appeal lies. Plaintiff's position is well taken.

Rule 4, Rules of Practice in the Court of Appeals of North Carolina, provides: 'The Court of Appeals will not entertain an appeal: From the ruling on an interlocutory motion, unless provided for elsewhere. Any interested party may enter an exception to the ruling on the motion and present the question thus raised to this Court on the final appeal; provided, that when any interested party conceives that he will suffer substantial harm from the ruling on the motion, unless the ruling is reviewed by this Court prior to the trial of the cause on its merits, he may petition this Court for a writ of certiorari within thirty days from the date of the entry of the order ruling on the motion.'

'No appeal lies from a refusal to dismiss an action.' Johnson v. Pilot Life Insurance Co., 215 N.C. 120, 122, 1 S.E.2d 381, 383 (1939). As was pointed out by Chief Justice Stacy in that case, if the motion had been allowed and the action dismissed, plaintiff would have a right of immediate appeal, because further proceedings would have been precluded by the order. The Court, citing the statute permitting appeals, then C.S. 638, now G.S. § 1--277, noted that 'It is only when the judgment or order appealed from in the course of the action puts an end to it, or may put an end to it, or has the effect to deprive the party complaining of some substantial right, or will seriously impair such...