Oestreicher v. American Nat. Stores, Inc.

Decision Date17 June 1976
Docket NumberNo. 34,34
Citation225 S.E.2d 797,290 N.C. 118
CourtNorth Carolina Supreme Court
PartiesBert W. OESTREICHER in her capacity as Trustee for Rachel W. Oestreicher (now Rachel O. Haspel) and Dave Oestreicher, II v. AMERICAN NATIONAL STORES, INC. a/k/a National Manufacture & Stores Company, d/b/a Johnston's L & S Furniture Company.

Carlton, Rhodes & Thurston by Richard F. Thurston, Salisbury, for plaintiff-appellant.

Coughenour & Linn by Stahle Linn, Salisbury, for defendant-appellee.

COPELAND, Justice.

Did the Court of Appeals err in dismissing plaintiff's appeal because it was not a final judgment?

To properly evaluate this question, we must determine the true meaning of General Statutes 1A--1, Rule 54(b) which reads as follows:

'(b) Judgment upon multiple claims or involving multiple parties.--When more than one claim for relief is presented in an action, whether as a claim, counter-claim, crossclaim, or third-party claim, or when multiple parties are involved, the court may enter a final judgment as to one or more but fewer than all of the claims or parties only if there is no just reason for delay and it is so determined in the judgment. Such judgment shall then be subject to review by appeal or as otherwise provided by these rules or other statutes. In the absence of entry of such a final judgment, any order or other form a decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties and shall not then be subject to review either by appeal or otherwise except as expressly provided by these rules or other statutes. Similarly, in the absence of entry of such a final judgment, any order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.' (Emphasis added.)

Since the federal courts have had a similar type rule since 1931 and as amended in 1946 and 1961, we should examine their rule. 6 Moore's Federal Practice §§ 54.01(5), 54.01(6.--4) (2d ed. 1976).

The comparable federal rule is as follows:

'(b) Judgment upon Multiple Claims or Involving Multiple Parties.

When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third- party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order of other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.' (Emphasis added.) Rules of Civil Procedure for the United States District Courts, 28, App. U.S.C. Rule 54(b) (1970).

The history of the rule leads us to England. In Metcalfe's Case, 11 Coke 38, 77 Eng.Rep. 1193 (1615), it was held that the general rule would not permit a judgment to be appealed that had not completely disposed of the action. Our federal courts relied on the reasoning of this case for many years. 6 Moore's Federal Practice, supra, § 54.19. But Metcalfe's Case has continuing validity in the federal courts only insofar as 'complete finality is warranted.' 6 Moore's Federal Practice, supra at § 54.19, at 212.

At common law there was no appeal of right from the decision of any court, and the only way a decision could be reviewed was by a 'writ of error or writ of false judgment.' G.S. 1--277, Annot. 307 (1969). Prior to 1868 starting with the enactment in December, 1777 of Chapter 2 of the Laws of North Carolina §§ 1, 2, 4, 7, 82--89, decisions in North Carolina were generally reviewed by 'writ of error,' by 'praying an appeal,' or by 'certiorari.' In 1868 the legislature enacted the Code of Civil Procedure, which made a notable change. Writs of error were abolished, and appeals were no longer prayed for (and Allowed) but were taken. Code of Civil Procedure, §§ 296, 299 (1868). Under the new Code of Civil Procedure, a judge had nothing to do with granting an appeal, for it was the act of the appealing party alone. Campbell v. Allison, 63 N.C. 568 (1869).

It was with this background that the North Carolina General Assembly adopted Rule 54(b) in 1967. It will be observed that our Rule 54(b) has one notable exception that is not included in the Federal Rule. The applicability of our Rule is limited by the language 'except as expressly provided by these rules or other statutes.' Except for this specific exception, the language of our Rule would not permit an appeal if fewer than all the claims are determined unless it is provided in the judgment that there 'is no just reason for delay.' Arnold v. Howard, 24 N.C.App. 255, 210 S.E.2d 492 (1974).

Because the Rule 54(b) limitation on appealability is not applicable where other statutes expressly provide otherwise, we consider G.S. 1--277, which provides as follows:

'(a) An appeal may be taken from every judicial order or determination of a judge of a superior court, upon or involving a matter of law or legal inference, whether made in or out of term, which affects a substantial right claimed in any action or proceeding; or which in effect determines the action, and prevents a judgment from which an appeal might be taken; or discontinues the action, or grants or refuses a new trial.

'(b) Any interested party shall have the right of immediate appeal from an adverse ruling as to the jurisdiction of the court over the person or property of the defendant or such party may preserve his exception for determination upon any subsequent appeal in the cause.' (Emphasis added.)

When the North Carolina General Assembly enacted the new Rules of Civil Procedure in 1967, it did not repeal General Statutes 1--277. In fact, it left the old statute intact as to subsection (a) and merely added subsection (b). Chapter 954 § 3(j), 1967 Session Laws.

Our Court has consistently interpreted G.S. 1--277 so as to give any party to a lawsuit a right to an immediate appeal from every judicial determination which affects a substantial right of that party, or which constitutes a Final adjudication, even when that determination disposes of only a part of the lawsuit.

In Highway Commission v. Nuckles, 271 N.C. 1, 155 S.E.2d 772 (1967), the Highway Commission sought to condemn property of defendants. There were two issues presented to the trial court: (1) What land was plaintiff taking in the action? and (2) What was the just compensation for the property taken? The trial court considered these questions separately and made a determination on the first issue adverse to plaintiff. Plaintiff duly excepted to the court's findings in this regard but did not immediately appeal. Rather, it continued to pursue the matter in superior court, and eventually the issue of damages was determined. Defendant excepted to the award of damages and appealed. At that time, plaintiff attempted to appeal the prior determination of the first issue.

Our Court, in an opinion by Justice Sharp (now Chief Justice), dismissed plaintiff's purported appeal because of its failure to perfect the appeal within the time required by the rules. However, in so doing, this Court set forth very clearly the meaning and application of G.S. 1--277 as follows:

'Appeals in civil actions are governed by G.S. § 1--277, which permits an appeal from every judicial order involving a matter of law which affects a substantial right. Ordinarily, an appeal lies only from a final judgment, but an interlocutory order which will work injury if not corrected before final judgment is appealable. (Citation omitted.) ' (A) decision which disposes not of the whole but merely of a separate and distinct branch of the subject matter in litigation' is final in nature and is immediately appealable. 4 Am.Jur.2d, Appeal and Error § 53 (1962).' (Emphasis added.) Highway Commission v. Nuckles, supra 271 N.C. at 13, 155 S.E.2d at 783.

In an opinion by Justice Huskins, our Court spoke on this general proposition in Stanback v. Stanback, 287 N.C. 448, 453, 215 S.E.2d 30, 34 (1975):

'Ordinarily, an appeal from an interlocutory order will be dismissed as fragmentary and premature unless the order affects some substantial right and will work injury to appellant if not corrected before appeal from final judgment. (Citations omitted.)'

In our examination of 'other statutes' affecting Rule 54(b), we also note General Statutes 7A--27(d), which provides as follows:

'(d) From any interlocutory order or judgment of a superior court or district court in a civil action or proceeding which (1) Affects a substantial right, or (2) In effect determines the action and prevents a judgment from which appeal might be taken, or (3) Discontinues the action, or (4) Grants or refuses a new trial, appeal lies of right directly to the Court of Appeals.'

This statute, which is included in Chapter 7A, entitled 'Judicial Department,' was passed in 1967 by the same General Assembly that enacted Rule 54(b).

In our case the judgment of Judge Seay did not have the effect of terminating the entire lawsuit and, thus, did not purport to adjudicate all the rights and claims of all the parties to the lawsuit. General Statutes 1--277 and 7A--27(d) seem to give a right of appeal if a 'substantial right' is affected. But in order for these statutes to be applicable to our case, we must assume that the General Assembly in 1967 intended something by the use of the words 'or other statutes' as set out in ...

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