Veazey v. City of Durham, No. 743

Docket NºNo. 743
Citation57 S.E.2d 377, 231 N.C. 357
Case DateFebruary 03, 1950
CourtUnited States State Supreme Court of North Carolina

Page 377

57 S.E.2d 377
231 N.C. 357
VEAZEY,
v.
CITY OF DURHAM.
No. 743
Supreme Court of North Carolina.
Feb. 3, 1950

Victor S. Bryant and Robert I. Lipton, Durham, for plaintiff, appellee.

Claude V. Jones and Egbert L. Haywood, Durham, for defendant, appellant.

ERVIN, Justice.

We are confronted at the threshold of this appeal by the assertion of the defendant that Judge Burney had no power to try the cause during the week beginning on March 14, 1949, and that in consequence the verdict and judgment must be set aside and a new trial awarded without regard to whether the trial on the merits conformed to pertinent legal principles. The defendant urges two lines of reasoning to sustain this position.

It argues initially that its appeal from the order of Judge Nimocks denying its motion for a compulsory reference transferred jurisdiction of this case from the Superior Court to the Supreme Court until such appeal was dismissed by the Supreme Court, and that by reason thereof the act of the Superior Court in trying the action on the merits while such appeal was pending constituted a complete nullity in law. This contention necessitates an examination of the principles by which decisions of the Superior Court are reviewed in the Supreme Court.

Judgments and orders of the Superior Court are divisible into these two classes: (1) Final judgments; and (2) interlocutory orders. G.S. § 1-208. A final judgment is one which disposes of the cause as to all the parties, leaving nothing to be judicially determined between them in the [231 N.C. 362] trial court. Sanders v. May, 173 N.C. 47, 91 S.E. 526; Bunker v. Bunker, 140 N.C. 18, 52 S.E. 237; McLaurin v. McLaurin, 106 N.C. 331, 10 S.E. 1056; Fleming v. Roberts, 84 N.C. 532. An interlocutory order is one made during the pendency of an action, which does not dispose of the case, but leaves it for further action by the trial court in order to settle and determine the entire controversy. Johnson v. Roberson, 171 N.C. 194, 88 S.E. 231.

Not every judgment or order of the Superior Court is appealable to the Supreme Court. Indeed, an appeal can be taken only from such judgments and orders as are designated by the statute regulating the right of appeal. This statute provides that '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.' G.S. 1-277.

The decisions construing and applying this statute and connected provisions of the Code of Civil Procedure implementing it establish the propositions set forth below:

1. An appeal lies to the Supreme Court from a final judgment of the Superior Court. Johnson v. Insurance Co., 219 N.C. 445, 14 S.E.2d 405; McIntosh Grocery Co. v. Newman, 184 N.C. 370, 114 S.E. 535; Yates v. Insurance Co., 176 N.C. 401, 97 S.E. 209; Martin v. Flippin, 101 N.C. 452, 8 S.E. 345; Moore v. Hinnant, 87 N.C. 505.

2. An appeal does not lie to the Supreme Court from an interlocutory order of the Superior Court, unless such 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. Parrish v. R. R., 221 N.C. 292, 20 S.E.2d 299; Cole v. Trust Co., 221 N.C. 249, 20 S.E.2d 54; Tar Heel Hosiery Mill v. Hosiery Mills, 198 N.C. 596, 152 S.E. 794; Leak v. Covington, 95 N.C. 193; Welch v. Kinsland, 93 N.C. 281.

Page 382

3. A nonappealable interlocutory order of the Superior Court, which involves the merits and necessarily affects the judgment, is reviewable in the Supreme Court on appropriate exception upon an appeal from the final judgment in the cause. G.S. § 1-278; Alexander v. Alexander, 120 N.C. 472, 27 S.E. 121. An earlier appeal from such an interlocutory order is fragmentary and premature, and will be dismissed. Penn-Allen Cement Co. v. Phillips, 182 N.C. 437, 109 S.E. 257.

4. A judgment or order rendered by a judge of the Superior Court in the exercise of a discretionary power is not subject to review by appeal to the Supreme Court in any event, unless there has been an abuse of discretion on his part. McIntosh: North Carolina Practice and Procedure [231 N.C. 363] in Civil Cases, section 676; Beck v. Bottling Co., 216 N.C. 579, 5 S.E.2d 855; Smith v. Insurance Co., 208 N.C. 99, 179 S.E. 457; Winslow Co. v. Cutler, 205 N.C. 206, 170 S.E. 636.

When a litigant takes an appeal to the Supreme Court from an appealable interlocutory order of the Superior Court and perfects such appeal in conformity to law, the appeal operates as a stay of all proceedings in the Superior Court relating to the issues included therein until the matters are determined in the Supreme Court. G.S. § 1-294; Lawrence v. Lawrence, 226 N.C. 221, 37 S.E.2d 496; Ridenhour v. Ridenhour, 225 N.C. 508, 35 S.E.2d 617; Ragan v. Ragan, 214 N.C. 36, 197 S.E. 554; Vaughan v. Vaughan, 211 N.C. 354, 190 S.E. 492; Bohannon v. Trust Co., 198 N.C. 702, 153 S.E. 263; Likas v. Lackey, 186 N.C. 398, 119 S.E. 763; Pruett v. Power Co., 167 N.C. 598, 83 S.E. 830; Combes v. Adams, 150 N.C. 64, 63 S.E. 186.

But this sound principle is not controlling upon the record in the case at bar. The defendant took its appeal from an order of Judge Nimocks denying its motion for a compulsory reference. Since Judge Nimocks entered such order in the exercise of a discretion reposed in him by law, and since nothing suggested or indicated any abuse of such discretion on his part, the order was not subject to review by appeal. Veazey v. Durham, supra. For this reason, we are presently concerned with this precise question: What is the effect of an appeal from a nonappealable interlocutory order upon proceedings in the Superior Court pending the dismissal of the appeal by the Supreme Court?

Back of every legal principle lies the reason that gave it birth. Hence, a rule of law can be best interpreted and applied if due heed is paid to the reason which called it into being. Let us consider the reason which accounts for the rules regulating appeals.

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715 practice notes
  • Town of Beech Mountain v. Genesis Wildlife Sanctuary, Inc., Nos. COA15–260
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • May 10, 2016
    ...order from which the Town appealed was "made during the pendency of an action" and did not dispose of the case. Veazey v. City of Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381 (1950). At the time the Town filed this appeal, this Court lacked jurisdiction to hear the appeal because it was an......
  • Beroth Oil Co. v. N.C. Dep't of Transp., No. COA17-74
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • November 21, 2017
    ...of bringing cases to an appellate court piecemeal through the medium of successive appeals from intermediate orders." Veazey v. Durham , 231 N.C. 357, 363, 57 S.E.2d 377, 382, reh'g denied , 232 N.C. 744, 59 S.E.2d 429 (1950). When the State takes private property for a public use, it must ......
  • Johnston v. State, No. COA12–45.
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • December 18, 2012
    ...of the case, but leaves it for further action by the trial court in order to settle and determine the entire controversy.Veazey v. Durham, 231 N.C. 357, 361–62, 57 S.E.2d 377, 381 (1950) (internal citations omitted). Since the trial court has not ruled upon plaintiff's claims for compensato......
  • Gilbert v. North Carolina State Bar, No. 41PA07.
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • March 20, 2009
    ...(quoting Goldston v. Am. Motors Corp., 326 N.C. 723, 726, 392 S.E.2d 735, 736 (1990) (alteration in original))); Veazey v. City of Durham, 231 N.C. 357, 361-62, 57 S.E.2d 377, 381 (1950) ("A final judgment is one which disposes of the cause as to all the parties, leaving nothing to be judic......
  • Request a trial to view additional results
707 cases
  • Town of Beech Mountain v. Genesis Wildlife Sanctuary, Inc., Nos. COA15–260
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • May 10, 2016
    ...order from which the Town appealed was "made during the pendency of an action" and did not dispose of the case. Veazey v. City of Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381 (1950). At the time the Town filed this appeal, this Court lacked jurisdiction to hear the appeal because it was an......
  • Beroth Oil Co. v. N.C. Dep't of Transp., No. COA17-74
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • November 21, 2017
    ...of bringing cases to an appellate court piecemeal through the medium of successive appeals from intermediate orders." Veazey v. Durham , 231 N.C. 357, 363, 57 S.E.2d 377, 382, reh'g denied , 232 N.C. 744, 59 S.E.2d 429 (1950). When the State takes private property for a public use, it must ......
  • Johnston v. State, No. COA12–45.
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • December 18, 2012
    ...of the case, but leaves it for further action by the trial court in order to settle and determine the entire controversy.Veazey v. Durham, 231 N.C. 357, 361–62, 57 S.E.2d 377, 381 (1950) (internal citations omitted). Since the trial court has not ruled upon plaintiff's claims for compensato......
  • Gilbert v. North Carolina State Bar, No. 41PA07.
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • March 20, 2009
    ...(quoting Goldston v. Am. Motors Corp., 326 N.C. 723, 726, 392 S.E.2d 735, 736 (1990) (alteration in original))); Veazey v. City of Durham, 231 N.C. 357, 361-62, 57 S.E.2d 377, 381 (1950) ("A final judgment is one which disposes of the cause as to all the parties, leaving nothing to be judic......
  • Request a trial to view additional results

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