Johnson v. North Carolina Department of Transportation

WEBB, Judge.

We first consider the appealability of the order of the Industrial Commission. An appeal does not lie from an interlocutory order unless such order 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. Industries, Inc. v. Insurance Co., 296 N.C. 486, 251 S.E. 2d 443 (1979). The appellants argue first that this rule does not apply because the order of the Industrial Commission is a final judgment. The case was not remanded to the deputy commissioner and any further proceedings must be brought with new pleadings and a new docket number. The appellant contends that the case has been concluded and an appeal from the final judgment should be allowed. We believe that to hold that any claim brought on the same facts as were alleged in this case is a different case would be to exalt form over substance. If the plaintiff brings another action based on the same facts as those on which this case is based it will be a continuation of this case. That being so, the order of the Industrial Commission is not a final judgment disposing of the case.

If the order of the Industrial Commission is not a final judgment, the question is whether the defendant will suffer an injury if what it contends is the error of the Industrial Commission is not corrected before an appeal from a final judgment. We have held that the fact that a party must go through a trial before appealing from a pretrial order affecting a substantial right does not give him the right to an immediate appeal. State v. Jones, 67 N.C. App. 413, 313 S.E. 2d 264 (1984). We can think of no injury to the defendant in this case if a new claim is filed other than having to try the case again if it is not now allowed to appeal. For this reason we hold that the appeal should be dismissed.

Appeal dismissed.

Judges Braswell and Eagles concur.