Munchak Corporation v. McDaniels

189 S.E.2d 655 (1972)

The MUNCHAK CORPORATION and RDG Corporation, a joint Venture, d/b/a The Carolina Cougars
v.
James R. McDANIELS.

No. 7218SC419.

Court of Appeals of North Carolina.

June 28, 1972.

Forman & Zuckerman, P. A., by William Zuckerman, Greensboro, for plaintiff-appellee.

Smith, Moore, Smith, Schell & Hunter, by Bynum M. Hunter, and Ben F. Tennille, Greensboro, for defendant-appellant.

CAMPBELL, Judge.

Defendant's sole assignment of error is to the trial court's decision that it had jurisdiction to rule on the show cause order. Defendant makes a number of arguments on the jurisdiction issue created by the petition for removal to the United States District Court.

It is not necessary for us to reach defendant's arguments. In determining that it had jurisdiction, the trial court entered no written order, judgment or decree. The determination of jurisdiction was merely an oral expression of the trial court's opinion. Nothing affecting the defendant has been done. Defendant is attempting to appeal from that expression of opinion. Can an appeal lie from the oral expression of an opinion by the trial court? We hold it cannot.

The general rule is that, "the mere ruling, decision, or opinion of the court, no judgment or final order being entered in accordance therewith, does not have the effect of a judgment, and is not reviewable by appeal or writ of error." 4 C.J.S. Appeal and Error § 153 c at p. 517.

As to oral opinions it is said that, "[a] mere oral order or decision which has never been expressed in a written order or judgment cannot, under most authorities, support an appeal or writ of error." 4 C.J.S. Appeal and Error § 153c at p. 520.

There is case authority in North Carolina for this rule. In Taylor v. Bostic, 93 N.C. 415 (1885) the trial court entered a written statement of his opinion, but no order or judgment was entered. The North Carolina Supreme Court held that the appeal was premature, there being no judgment and "therefore no question of law presented" from which appeal could be taken.

Defendant cannot appeal from the mere oral expression of opinion by the trial court. We therefore dismiss this appeal, ex mero motu.

Appeal dismissed.

MALLARD, C. J., and BROCK, J., concur.