Wachovia Bank & Trust Co., N.A. v. Parker Motors, Inc.

186 S.E.2d 675 (1972) 13 N.C. App. 632

WACHOVIA BANK AND TRUST COMPANY, N.A.
v.
PARKER MOTORS, INC.

No. 7221SC54.

Court of Appeals of North Carolina.

February 23, 1972.

Womble, Carlyle, Sandridge & Rice, by Zeb E. Barnhardt, Jr., and W. P. Sandridge, Jr., Winston-Salem, for plaintiff-appellant.

Eugene H. Phillips, Winston-Salem, for defendant-appellee.

BROCK, Judge.

Plaintiff argues that the Receiver has succeeded to all the rights and privileges of defendant; therefore, defendant has no right to defend itself or prosecute a counterclaim against plaintiff.

The Receiver has not undertaken to be substituted as the party defendant in defendant's answer and counterclaim and the Receiver has not appeared in the Superior Court or in this Court in opposition to defendant's effort to defend itself. It seems to us that if anyone has been aggrieved by the Order, denying the motion to strike defendant's answer and counterclaim, it is the Receiver. However, as pointed out above, the Receiver is not seeking to remove defendant from the lawsuit.

Aside from the view that Rule 4, Rules of Practice in the Court of Appeals (as amended 20 January 1971), would deny to a party the right of appeal from an order such as the one complained of by plaintiff in this case, the right of appeal is limited by statute to a party aggrieved. G.S. § 1-271. A party is not aggrieved unless the order complained of affects a substantial right, or in effect determines the action. G.S. § 1-277. Coburn v. Roanoke Land & Timber Corporation, 260 N.C. 173, 132 S.E.2d 340.

The Order of Judge Long which denied plaintiff's motion to strike defendant's answer and counterclaim does not affect a substantial right of plaintiff, nor does it in effect determine the action. Plaintiff is at liberty to offer evidence to substantiate its own allegations and to offer evidence in defense against defendant's allegations.

The attempted appeal must be, and it is

Dismissed.

BRITT and VAUGHN, JJ., concur.