Gardner v. Price Ex Rel. Price

80 S.E.2d 478 (1954) 239 N.C. 651

GARDNER
v.
PRICE et al.

No. 17.

Supreme Court of North Carolina.

March 17, 1954.

P. H. Bell, Plymouth, Charles V. Bell, Charlotte, for John A. Price and wife, Lillian E. Price, defendants-appellants.

Grimes & Grimes, J. D. Grimes, Mayo & Mayo, A. W. Bailey, James B. McMullan, Washington, for plaintiff-appellee.

JOHNSON, Justice.

This appeal is premature. It is from a nonappealable, interlocutory order. Veazey v. City of Durham, 231 N.C. 357, 57 S.E. 2d 377; City of Raleigh v. Edwards, 234 N.C. 528, 67 S.E.2d 669.

In the hearing below it was not contemplated that Judge Morris should hear and determine the entire controversy. The parties stipulated that the inquiry should be limited to a determination of the single question whether the judgment entered by Judge Nimocks in the prior action brought to set aside the deed may be collaterally attacked in this proceeding. The order entered by Judge Morris recites that the scope of inquiry was limited to this single aspect of the case.

The procedure followed here is strikingly similar to that in Hines v. Hines, 84 N.C. 122. In that case, as here, counsel undertook to separate a question of law from other matters in controversy, leaving them to be disposed of afterwards, and have the question of law passed on in advance by this Court. In dismissing the appeal, Ashe, J., speaking for the Court, said: "The law involved is by a ``pro forma' judgment sent to this Court, while the facts and merits of the case are retained in the court below to await the opinion of this Court upon the question of law. Such a proceeding is an innovation upon the practice of the Court, and to entertain the appeal would be establishing a bad precedent, to which this Court cannot give its sanction."

The rule announced in the Hines case is firmly imbedded in our appellate procedure. See G.S. § 1-277; City of Raleigh v. Edwards, supra; Veazey v. City of Durham, supra; Emry v. Parker, 111 N.C. 261, 16 S.E. 236; Hilliard v. Oram, 106 N.C. 467, 11 S.E. 514; Blackwell v. McCain, 105 N.C. 460, 11 S.E. 360; Hicks v. Gooch, 93 N.C. 112.

In City of Raleigh v. Edwards, supra, Ervin, J., speaking for the Court, said [234 N.C. 528, 67 S.E.2d 671]: "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; * * *."

In Hilliard v. Oram, supra, it is stated: "The court refused the plaintiff judgment for recovery of the land sued for upon the issues found, and entered an interlocutory judgment. The appeal of the defendants is premature. They should have noted their exception, and, after the trial is completed by a finding upon the other issue and a final judgment, an appeal will lie. The court here will not try causes by ``piecemeal.' This has often been decided." (Authorities cited.)

Upon entry of an interlocutory order, like the one in the case at hand, every right of the parties may be protected by entering timely exceptions, and it can affect no substantial right of anyone to postpone review of all rulings below until two trial judges accomplish the usual function of one before an appeal is taken.

Conceding obiter, as we may, that Judge Morris' ruling below is correct, nevertheless our established rule of appellate procedure must be upheld. Therefore the appeal is dismissed and the parties are left to proceed with the unfinished cause in the court below as if uninterrupted by this attempted appeal. Hicks v. Gooch, supra.

Appeal dismissed.