Hill v. Smith

248 S.E.2d 455 (1978) 38 N.C. App. 625

Herbert McKinley HILL and wife, Edna Byrd Hill, Plaintiffs and Third-Party Plaintiffs,
v.
Ester SMITH, Defendant,
v.
William H. ANDERSON and wife, Margarita H. Anderson, Third-Party Defendants.

No. 7718DC1026.

Court of Appeals of North Carolina.

November 7, 1978.

Badgett, Calaway, Phillips, Davis & Montaquila by Chester C. Davis, Winston-Salem, for plaintiffs-appellees.

O'Connor & Speckhard by Donald K. Speckhard, Greensboro, for defendant-appellant.

Jordan, Wright, Nichols, Caffrey & Hill by Luke Wright, Greensboro, for third-party defendants.

VAUGHN, Judge.

The right to appeal from a decision of a superior court judge is governed by G.S. 1-277 which, in pertinent part, provides:

"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."

Defendant claims that the facts in this case were undisputed and that the refusal of the trial court to determine the questions of law by the denial of summary judgment in effect denied her a substantial right. Plaintiffs, on the other hand, contend that there are genuine issues of material fact.

Generally, orders denying motions for summary judgment are not appealable. In Motyka v. Nappier, 9 N.C.App. 579, 176 S.E.2d 858 (1970), this Court stated that the denial of a motion for summary judgment did not affect a substantial right. In Stonestreet v. Compton Motors, Inc., 18 N.C. App. 527, 197 S.E.2d 579 (1973), this Court refused to review a denial of defendant's motion for summary judgment stating that the ends of justice would be met by a full trial. See also Parker Oil Co., Inc. v. Smith, 34 N.C.App. 324, 237 S.E.2d 882 (1977). The federal courts have also refused to review a denial of summary judgment. Valdosta Livestock Co. v. Williams, 316 F.2d 188 (4th Cir. 1963). The purported appeal is fragmentary and will be dismissed.

Dismissed.

ARNOLD and WEBB, JJ., concur.