Casey v. Grice

60 N.C. App. 273 | N.C. Ct. App. | 1983

MORRIS, Chief Judge.¹

Although plaintiff and defendant raised no question of ap-pealability, we believe the order appealed from is interlocutory and non-appealable. G.S. l-277(a) provides in pertinent part:

An appeal may be taken from every judicial order or determination of a judge of a superior or district court, upon or involving a matter of law or legal inference, whether made in or out of session, which affects a substantial right claimed in any action or proceeding; . . .

However, “it has been held that orders denying or allowing discovery are not appealable since they are interlocutory and do not affect a substantial right which would be lost if the ruling were not reviewed before the final judgment.” Dworsky v. Insurance Co., 49 N.C. App. 446, 447, 271 S.E. 2d 522, 523 (1980).

Where neither party raises the question of appealability and no right to appeal exists, an appellate court should dismiss the appeal on its own motion. Pasour v. Pierce, 46 N.C. App. 636, 265 S.E. 2d 652 (1980), Metcalf v. Palmer, 46 N.C. App. 622, 265 S.E. 2d 484 (1980).

Because all assignments of error are based on Judge Bowen’s order directing defendant to answer interrogatories and submit to oral deposition, we believe defendant’s appeal is premature and must, therefore, be dismissed.

Appeal dismissed.

Judges BECTON and JOHNSON concur.

1 . The Court’s decision in this case was made and written prior to Chief Judge Morris’s retirement.