Fraser v. Di Santi

Citation331 S.E.2d 217,75 N.C.App. 654
Decision Date02 July 1985
Docket NumberNo. 8424SC1235,8424SC1235
PartiesThomas J. FRASER and Wife, Jennifer F. Fraser v. Anthony S. DI SANTI, C. Banks Finger, Donald M. Watson, Jr., Anthony S. Di Santi and Linda M. McGee, Partners d/b/a Finger, Watson, Di Santi and McGee.
CourtCourt of Appeal of North Carolina (US)

Boyle, Alexander, Hord & Smith by Robert C. Hord, Jr., for plaintiffs-appellees.

Moore & Willardson by John S. Willardson, for defendants-appellants.

EAGLES, Judge.

Defendants purport to bring forth two assignments of error on appeal: (1) the trial court erred in denying defendants' motions to dismiss for failure to bring the action in the name of the real party in interest and failure to join a necessary party and (2) the trial court erred in denying defendants' motion for summary judgment.

An appeal does not lie from an interlocutory order unless the order affects some substantial right claimed by the appellant and will work an injury to him if not corrected before an appeal from the final judgment. Veazey v. Durham, 231 N.C. 357, 57 S.E.2d 377 (1950). The reason for this rule is to prevent fragmentary, premature and unnecessary appeals by permitting the trial court to bring the case to final judgment before it is presented to the appellate courts. Waters v. Personnel, Inc., 294 N.C. 200, 240 S.E.2d 338 (1978). The order entered by the trial court in this case denying defendants' motions to dismiss and for summary judgment was not a final determination of defendants' rights. Auction Company v. Myers, 40 N.C.App. 570, 253 S.E.2d 362 (1979) (denial of motions to dismiss); Hill v. Smith, 38 N.C.App. 625, 248 S.E.2d 455 (1978) (denial of motion for summary judgment). This is true even though the trial court, in its appeal entries, states that "there is no just reason to delay the appeal." Cook v. Tobacco Co., 47 N.C.App. 187, 266 S.E.2d 754 (1980). This finding by the trial court must be construed in light of G.S. 7A-27 and our well-settled case law concerning interlocutory appeals. Further, this appeal does not affect defendant's substantial rights. The appeal cannot lie as of right to this court.

Appeal dismissed.

BECTON and PHILLIPS, JJ., concur.

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  • First Atlantic v. Dunlea Realty, COA97-540.
    • United States
    • Court of Appeal of North Carolina (US)
    • November 3, 1998
    ...at 869 (Rule 54(b) "certification is not dispositional when the order appealed from is interlocutory"); see also Fraser v. Di Santi, 75 N.C.App. 654, 655, 331 S.E.2d 217, 218, disc. review denied, 315 N.C. 183, 337 S.E.2d 856 (1985) (interlocutory appeal dismissed which did not "affect [app......
  • MacMillan v. MacMillan
    • United States
    • Court of Appeal of North Carolina (US)
    • March 3, 2015
    ...by permitting the trial court to bring the case to final judgment before it is presented to the appellate courts.” Fraser v. Di Santi,75 N.C.App. 654, 655, 331 S.E.2d 217, 218 (citation omitted), disc. review denied,315 N.C. 183, 337 S.E.2d 856 (1985). Despite the general rule, immediate ap......
  • Bob Timberlake Collection, Inc. v. Edwards
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    ...trial court to bring the case to final judgment before it is presented to the appellate courts.'" Id. (quoting Fraser v. Di Santi, 75 N.C.App. 654, 655, 331 S.E.2d 217, 218, disc. rev. denied, 315 N.C. 183, 337 S.E.2d 856 However, a party may immediately appeal an interlocutory order or jud......
  • Country Club of Johnston County v. USF & G, COA98-1419.
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    • Court of Appeal of North Carolina (US)
    • October 5, 1999
    ...by permitting the trial court to bring the case to final judgment before it is presented to the appellate courts. Fraser v. Di Santi, 75 N.C.App. 654, 655, 331 S.E.2d 217, 218, disc. review denied, 315 N.C. 183, 337 S.E.2d 856 (1985) (citation As our Supreme Court has noted, [t]here is no m......
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