Privette v. Privette

• Citation: 51 S.E.2d 925,230 N.C. 52
• Decision Date: 02 March 1949
• Docket Number: 96
• Parties: PRIVETTE v. PRIVETTE et al.
• Court: United States State Supreme Court of North Carolina

51 S.E.2d 925

230 N.C. 52

PRIVETTE v. PRIVETTE et al.

No. 96

Supreme Court of North Carolina

March 2, 1949

Special proceeding to sell land to make assets, heard on motion in the cause.

A phase of the controversy between the parties herein was before this Court at the Spring Term, 1947, Privette v Morgan, 227 N.C. 264, 41 S.E.2d 845. After the opinion in that case was certified down, the defendants Lucille Privette Hyde, J. Beverly Privette, and Stephen Privette appeared and moved to vacate the decree of confirmation, the deed executed pursuant thereto, and certain interlocutory orders entered in this proceeding. Thereupon, plaintiff appeared and moved to strike various allegations and statements contained in the motion. The clerk denied the motion to strike. On appeal the judge below affirmed the order of the clerk and respondent appealed.

L L. Davenport, of Nashville, and Hobart Brantley, of Spring Hope, for Mrs. Lottie A. Privette Morgan, respondent-appellant.

Sharpe & Pittman, of Wilson, Cooley & May, of Nashville, and Battle, Winslow & Merrell, of Rocky Mount, for defendant-appellees.

BARNHILL Justice.

An appeal may be taken to this Court only from a 'judicial order or determination * * * 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. ' G.S. s 1-277.

As a general rule an appeal will not lie until there is a final determination of the whole case. Moore v. Hinnant, 87 N.C. 505; State v. Keeter, 80 N.C. 472; Norfolk & S. Railroad Co. v. Warren, 92 N.C. 620; Hailey v. Gray, 93 N.C. 195. It lies from an interlocutory order only when it puts an end to the action or where it may destroy or impair or seriously imperil some substantial right of the appellant. Skinner v. Carter, 108 N.C. 106, 12 S.E. 908; Warren v. Stancill, 117 N.C. 112, 23 S.E. 216; Martin v. Flippin, 101 N.C. 452, 8 S.E. 345; Parrish v. Atlantic Coast Line R. C.o, 221 N.C. 292, 20 S.E.2d 299.

An appeal from such order will be dismissed unless the order affects some substantial right and will work injury to the appellant if not corrected before appeal from the final judgment. Cole v. Farmers Bank & Trust Co., 221 N.C. 249, 20 S.E.2d 54; Utilities Comm. v. Carolina Scenic Coach Co., 218 N.C. 233, 10 S.E.2d 824; Nissen Company v. Nissen, 198 N.C. 808, 153 S.E. 450.

The pleadings in a cause raise issues of fact to be decided by a jury, chart the course of the trial and, in large measure determine the competency of evidence. They are to be read to the jury. If they contain irrelevant or impertinent averments not competent to be shown in evidence, a refusal to strike might impair...