Parker Oil Co. v. Smith, 763DC1024

• Decision Date: 19 October 1977
• Docket Number: No. 763DC1024,763DC1024
• Citation: 34 N.C.App. 324,237 S.E.2d 882
• Parties: PARKER OIL COMPANY, INC., Plaintiff, v. Henry SMITH, Third Party Plaintiff, v. PARKER GRAIN COMPANY, INC., Third Party Defendant.
• Court: North Carolina Court of Appeals

Page 882

237 S.E.2d 882

34 N.C.App. 324

PARKER OIL COMPANY, INC., Plaintiff, v. Henry SMITH, Third Party Plaintiff, v. PARKER GRAIN COMPANY, INC., Third Party Defendant.

No. 763DC1024.

Court of Appeals of North Carolina.

Oct. 19, 1977.

Williamson, Shoffner & Herrin by Mickey A. Herrin, Greenville, for defendant and third party plaintiff.

J. Michael Weeks, Zebulon, for third party defendant.

ARNOLD, Judge.

Appellant contends that the trial court erred in denying its motion for summary judgment against defendant Smith. However, that question is not before us. A motion for summary judgment is simply a pretrial motion. Denial of a motion for summary judgment does not determine the merits of the case. It merely means that the case proceeds to trial. Annot. 15 A.L.R.3d 899 (1967).

Denial of a motion for summary judgment ordinarily does not affect a substantial right so that appeal may be taken from the interlocutory order. See, e. g. Stonestreet v. Motors, Inc., 18 N.C.App. 527, 197 S.E.2d 579 (1973). In Motyka v. Nappier, 9 N.C.App. 579, 176 S.E.2d 858 (1970), this Court properly dismissed an attempted appeal from the denial of a motion for summary judgment. However, dictum, at p. 582 of Motyka, 176 S.E.2d at 859, that the moving party is free to preserve his exception to the denial of a motion for summary judgment for consideration on appeal from final judgment, should be disregarded.

In this case, no error is assigned to any part of the trial which resulted in a jury verdict and judgment against the appellant. Judgment is therefore

Affirmed.

PARKER and MARTIN, JJ., concur.