Setzer v. Annas

• Decision Date: 05 June 1974
• Docket Number: No. 7425SC170,7425SC170
• Citation: 205 S.E.2d 553,21 N.C.App. 632
• Parties: Joseph B. SETZER and wife, Joan Q. Setzer v. Ronnie ANNAS.
• Court: North Carolina Court of Appeals

Page 553

205 S.E.2d 553

21 N.C.App. 632

Joseph B. SETZER and wife, Joan Q. Setzer v. Ronnie ANNAS.

No. 7425SC170.

Court of Appeals of North Carolina.

June 5, 1974.

Dickson Whisnant and Fate J. Beal, Lenoir, for plaintiff appellees.

Wilson, Palmer & Simmons, by George C. Simmons, III, Lenoir, for defendant appellant.

HEDRICK, Judge.

Defendant's four assignments of error are directed to both the granting and the composition of the preliminary injunction which was entered against the defendant by the trial court. The plaintiffs have filed a motion to dismiss this appeal, contending that such an appeal from a preliminary injunction is premature and fragmentary.

An appeal may be taken to this court 'from every judicial order or determination of a judge of a superior court . . . Which affects a substantial right (emphasis added) 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. § 1--277. Justice Ervin, writing for the Court in Raleigh v. Edwards, 234 N.C. 528, 67 S.E.2d 669 (1951) succinctly stated the underlying policy of G.S. § 1--277 to be as follows:

'Appellate procedure is designed to eliminate the unnecessary delay and expense of repeated fragmentary appeals, and to present the whole case for determination in a single appeal from the final judgment. To this end, the statute defining the right of appeal prescribes, in substance, that an appeal does not lie to the supreme court from an interlocutory order of the superior court, unless such interlocutory order deprives the appellant of a substantial right which he might lose if the order is not reviewed before final judgment. G.S. § 1--277; Veazey v. City of Durham, 231 N.C. 357, 57 S.E.2d 377; Emry v. Parker, 111 N.C. 261, 16 S.E. 236.'

Thus, the defendant's right to appeal rests solely on our determination of whether he will suffer impairment of a substantial right if this appeal is not entertained. The word 'substantial' is defined in Black's Law Dictionary, 4th Ed. (1968) as 'of real worth and importance; of considerable value; valuable' and several decisions of our Supreme Court construing G.S. § 1--277 exemplify the fact that the presence of the word 'substantial' was not intended as mere surplusage, but rather was to function as a roadblock to trivial appeals. Jenkins v. Trantham, 244 N.C. 422, 94 S.E.2d 311 (1956); Veazey v. Durham, supra; Privette v. Privette, 230 N.C. 52, 51 S.E.2d 925 (1949).

In the instant case the defendant insists that he will suffer infringement of a substantial right in that he will not be able to enjoy the full and complete use of his property. This contention is without merit. By the terms of the preliminary injunction entered by the trial court the defendant must do nothing more than refrain from obstructing the plaintiffs' lawful right (by the easement granted to plaintiffs by defendant et al) to ingress and egress across the property, and under such circumstances impairment of any right of defendant must be deemed De minimis. Therefore, for failure on the defendant's part to demonstrate that a substantial right was affected by the action of the trial judge, the appeal must be dismissed.

Appeal Dismissed.

BRITT, J., concurs.

CARSON, J., dissents.

CARSON, Judge (dissenting):

Following the issuance of the temporary restraining order, a full hearing was held in this matter on 17 September 1973. The defendant, both plaintiffs and various neighbors testified. The undisputed testimony showed that the property in question consisted of approximately 25 acres purchased by the defendant in 1967. The defendant had...