Wood v. City of Fayetteville

242 S.E.2d 640 (1978) 35 N.C. App. 738

C. Thomas WOOD, J. P. Riddle, as owners and lessees under long-term lease, and Donald Craig Harris, tenant, on behalf of themselves and all other property owners and tenants of the Cambridge Arms Apartments, County of Cumberland, State of North Carolina, similarly situated, Plaintiffs,
v.
CITY OF FAYETTEVILLE, North Carolina, and the City Council of said City, said Council consisting of Beth D. Finch, Mayor, and J. L. Dawkins, Vincent H. Shelds, Steven R. Satisky, L. Eugene Plummer, Marion C. George, Jr. and Marie W. Beard, Council, Defendants,
John M. Monaghan, Jr. and Thomas M. McCoy individually, and John M. Monaghan, Jr. and Thomas M. McCoy on behalf of themselves and all other citizens, residents, and taxpayers of the City of Fayetteville, Cumberland County and State of North Carolina, similarly situated, Intervenors Defendants.

No. 7712SC166.

Court of Appeals of North Carolina.

April 4, 1978.

Rose, Thorp, Rand & Ray by Herbert H. Thorp and Ronald E. Winfrey, Fayetteville, for plaintiffs-appellants.

Clark, Clark, Shaw & Clark by John G. Shaw, Fayetteville, for intervenors-defendants-appellees.

MITCHELL, Judge.

At the outset, we must determine whether an appeal will lie from the interlocutory order of 19 October 1976 granting the motion to intervene. It has long been the general rule in this jurisdiction that an order granting the right of intervention is not appealable, as any of the original parties may appeal from an adverse decision granting the intervenor relief on the merits. Bennett v. Shelton, 117 N.C. 103, 23 S.E. 95 (1895). Obviously the rule was based upon the fact that, in such situations, procedural economy commands that an appeal be permitted only from a final adverse decision. It is equally obvious that an order granting intervention may be reviewed upon appeal from the final judgment in the cause. Gammon v. Johnson, 126 N.C. 64, 35 S.E. 185 (1900); Bennett v. Shelton, 117 N.C. 103, 23 S.E. 95 (1895).

Although the rule is not absolute, ordinarily no appeal will lie from an order permitting intervention of parties unless the order adversely affects a substantial right which the appellant may lose if not granted an appeal before final judgment. Simon v. Board of Education, 258 N.C. 381, 128 S.E.2d 785 (1963); Burgess v. Trevathan, 236 N.C. 157, 72 S.E.2d 231 (1952); McPherson v. Morrisette, 243 N.C. 626, 91 S.E.2d 574 (1956) (per curiam); Annot., 15 A.L.R.2d 336 (1951). The rule applies with equal vigor without regard to whether the trial court grants a motion to intervene as a matter of right pursuant to G.S. 1A-1, Rule 24(a) or as permissive intervention pursuant to G.S. 1A-1, Rule 24(b). Both the general rule and the exception have been approved in substance and adopted by the General Assembly in G.S. 7A-27(d)(1) and G.S. 1-277.

The plaintiffs contend that the order permitting intervention denied them a substantial right in that they will now be required to defend the constitutionality of Section 2. They contend they would not have been required to defend the constitutionality of Section 2 had the trial court denied the motion to intervene. We note, however, that when the order permitting intervention was granted, the constitutional issues had been raised as a defense by the original defendants in the case. Clearly, at that point, permitting the intervention of other parties defendant who raised the constitutional defense did not change the nature of the action or affect a substantial right of the plaintiffs. It was only later that the trial court ordered that defense stricken from the answer of the original defendants.

Assuming arguendo that the trial court's order permitting intervention was the sole method by which the constitutional defense was raised, however, we do not find it adversely affected a substantial right which the plaintiffs may lose if the order is not reviewed before final judgment. The assignments and contentions the plaintiffs seek to present on interlocutory appeal will not be lost and may be thoroughly reviewed upon appeal from the final judgment if necessary. Gammon v. Johnson, 126 N.C. 64, 35 S.E. 185 (1900). Under the circumstances of this case, the plaintiffs have shown no prejudice which would warrant an appeal, and we order the

Appeal dismissed.

MORRIS and CLARK, JJ., concur.