Shaw v. Pedersen

281 S.E.2d 700 (1981)

Mable J. SHAW, Administratrix of the Estate of Nathaniel Shaw, Deceased,
v.
James R. PEDERSEN and Republic Van Storage Co., Inc.

No. 8018SC1070.

Court of Appeals of North Carolina.

September 15, 1981.

Benjamin S. Marks, Jr., and R. Horace Swiggett, Jr., Greensboro, for plaintiff-appellant.

Smith, Moore, Smith, Schell & Hunter by Richmond G. Bernhardt, Jr., and Peter J. Covington, Greensboro, for defendants-appellees.

MORRIS, Chief Judge.

The judgment is interlocutory and not appealable. In the recent case of Bailey v. Gooding, 301 N.C. 205, 270 S.E.2d 431 (1980), our Supreme Court held that an order of a trial court allowing a motion pursuant to G.S. 1A-1, Rule 60(b) to set aside a default judgment was interlocutory and not appealable. In so holding, the Court stated, per Justice Carlton:

While final judgments are always appealable, interlocutory decrees are immediately appealable only when they affect some substantial right of the appellant and will work an injury to him if not corrected before an appeal from final judgment. Id. [231 N.C. 357] at 362, 57 S.E.2d [377] at 381; G.S. 1-277 (Cum.Supp.1979). "A nonappealable interlocutory order ... which involves the merits and necessarily affects the judgment, is reviewable ... on appropriate exception upon an appeal from the final judgment in the cause." Veazey v. Durham, 231 N.C. at 362, 57 S.E.2d at 381.

. . . . .

Unquestionably, the order of Judge Stevens setting aside the default judgment is interlocutory; it does not finally dispose of the case and requires further action by the trial court. Because the order is interlocutory we will not review it unless it "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." Veazey v. Durham, 231 N.C. at 362, 57 S.E.2d at 381; see G.S. 1-277.

. . . . .

If the ultimate result of a trial on the merits goes against plaintiffs, they will then be able to appeal and assign as error the order setting aside their default judgment. No right of plaintiffs will be lost by delaying their appeal until after final judgment; their exception fully and adequately preserves their challenges to Judge Stevens' order. The absence of a right of immediate appeal will force plaintiffs to undergo a full trial on the merits instead of a trial solely on the issue of damages. Although this is a much greater burden than the necessity of a rehearing of a motion, we do not think it so difficult a burden, on the facts of this case, to elevate the order to the status of affecting a "substantial right." Avoidance of a trial, in this context, is not a "substantial right." See Waters v. Personnel, Inc., 294 N.C. 200, 240 S.E.2d 338 (1978); cf. Acoustical Co. v. Cisne and Associates, Inc., 25 N.C.App. 114, 212 S.E.2d 402 (1975) (order setting aside entry of default not appealable.)

301 N.C. at 209-10, 270 S.E.2d at 433-34. In this case plaintiff has adequately preserved the question of the appropriateness of the trial court's order setting aside the entry and judgment of default by taking exception thereto. That question may be subsequently raised, if necessary, upon an appeal from the final judgment following the trial of this action on its merits. Accordingly, plaintiff's appeal is

Dismissed.

WEBB and WHICHARD, JJ., concur.