Bell v. Moore

229 S.E.2d 235 (1976)

John D. BELL et al.
v.
Larry Walter MOORE and Shirley Poole Moore.

No. 7622SC418.

Court of Appeals of North Carolina.

November 3, 1976.

Homesley, Jones, Gaines & Dixon by Wallace W. Dixon, Statesville, for plaintiffs-appellees.

Richard M. Pearman, Jr., Greensboro, for defendants-appellants.

CLARK, Judge.

Defendants assign as error the issuance of the supplemental order which stayed collection of costs. Among other grounds, they assert lack of notice and hearing under G.S. 1A-1, Rules 6(d) and Rule 7(b)(1).

G.S. 1A-1, Rules 60(b)(6) would allow the court to relieve plaintiff from the costs imposed in the final judgment for any reason "justifying relief from the operation of the judgment." Although not denominated as such, we view plaintiffs' motion as one under Rule 60(b)(6) to relieve them of the costs of the depositions taken by defendants if plaintiffs prevail in the action to be reinstituted.

G.S. 1A-1, Rule 62(b) allows the court in its discretion to stay the execution of a judgment pending the disposition of a motion for relief from a judgment made pursuant to Rule 60(b)(6). W. Shuford, N.C. Civil Practice and Procedure, § 62-1 (1975). In his order Judge Collier found that it would work a substantial hardship on the plaintiffs to require immediate payment of the cost of the depositions since the suit was to be reinstituted and the depositions would be relevant to the subsequent action.

Not every order of the superior court is immediately appealable. G.S. 1-277. State v. Childs, 265 N.C. 575, 144 S.E.2d 653 (1965). Appellate procedure is designed to eliminate the unnecessary delay and expense of repeated fragmentary appeals and to present the whole case upon appeal from a final judgment. Harrell v. Harrell, 253 N.C. 758, 117 S.E.2d 728 (1961). The order staying collection of costs was an interlocutory order. Final judgment on costs would be entered at the termination of the second suit or, if plaintiffs failed to re-file, upon the expiration of the statute of limitations. Where the court has granted a stay pending a decision on a Rule 60(b) motion, there is no appealable order until the stay is dissolved or the motion ruled on. 7 J. Moore, Federal Practice, Para. 62.04 2d Ed. Supp.1975, citing Paxman v. Wilkerson, 73-1611 (4th Cir., Aug. 2, 1974).

An appeal from an interlocutory order will be dismissed as fragmentary and premature unless the order affects some substantial right and will work injury to appellant if not corrected before appeal from the final judgment. Gardner v. Price, 239 N.C. 651, 80 S.E.2d 478 (1954); Steele v. Hauling Co., 260 N.C. 486, 133 S.E.2d 197 (1963). We find no such right or injury to justify an immediate appeal from a discretionary order staying collection of deposition costs where the moving party has clearly expressed an intention to institute an action in which the same depositions will be material and where the non-moving party incurred those costs three months after filing responsive motions and over one month after taking an affidavit which revealed insufficiency of service of process and then waited an additional six months for a hearing upon a motion to dismiss for insufficient service.

The appeal is

Dismissed.

BRITT and PARKER, JJ., concur.