266 S.E.2d 754 | N.C. Ct. App. | 1980
Harry L. COOK, Plaintiff,
v.
EXPORT LEAF TOBACCO COMPANY, Defendant and Third-Party Plaintiff,
v.
John L. COOK d/b/a John L. Cook Plumbing Company, Third-Party Defendant.
Court of Appeals of North Carolina.
*755 Hudson, Petree, Stockton, Stockton & Robinson by Norwood Robinson and Daniel R. Taylor, Jr., Winston-Salem, for third-party plaintiff-appellee.
Moore, Weaver & Beaman by George A. Weaver, Wilson, for third-party defendant-appellant.
WEBB, Judge.
The partial summary judgment in favor of Export does not dispose of all the issues in the case and is therefore an interlocutory order. The first question we face is whether this appeal should be dismissed as being fragmentary. The appealability of interlocutory decrees has raised troublesome questions in this jurisdiction. The problem has been faced in the following cases. Highway Commission v. Nuckles, 271 N.C. 1, 155 S.E.2d 772 (1967); Oestreicher v. Stores, 290 N.C. 118, 225 S.E.2d 797 (1976); Newton v. Insurance Co., 291 N.C. 105, 229 S.E.2d 297 (1976); Nasco Equipment Co. v. Mason, 291 N.C. 145, 229 S.E.2d 278 (1976); Industries, Inc. v. Insurance Co., 296 N.C. 486, 251 S.E.2d 443 (1979); Whalehead Properties v. Coastland Corp., 299 N.C. 270, 261 S.E.2d 899 (1980); Beck v. Assurance Co., 36 N.C.App. 218, 243 S.E.2d 414 (1978); Nichols v. Credit Union, ___ N.C.App. ___, 264 S.E.2d 793 (1980). We believe the rule from these cases is that if a trial court enters an order which affects a substantial right and will work injury if not corrected before appeal from a final judgment, it is appealable under G.S. 1-277 and G.S. 7A-27(d). G.S. 1-277(b) also allows an immediate appeal from an adverse ruling as to the jurisdiction of the court over the person or property of the defendant. The cases also hold that G.S. 1A-1, Rule 54(b) provides for an immediate appeal when there are multiple parties or claims and the trial court enters a final judgment as to less than all the parties or claims and determines "there is no just reason for delay."
*756 In this case, we hold the summary judgment will not work injury to appellant if not corrected before appeal from a final judgment. Indeed we cannot say whether or not Cook will be injured until the plaintiff's claim against Export has been determined. The summary judgment is not appealable under G.S. 1-277 or G.S. 7A-27(d). Nor do we believe the summary judgment is appealable under Rule 54(b). The court did make a finding that Cook "shall be entitled to appeal" which might comply with the Rule's requirement that the court determine "there is no just reason for delay." However, the judgment is not final which is also a requirement for appealability under Rule 54(b). The partial summary judgment held that Cook must indemnify Export for the claim of plaintiff in the case sub judice. At this time, Export has not been held liable to plaintiff. Until the amount for which Cook must pay on the indemnity contract has been determined, the partial summary judgment will not be a final judgment which is a requirement for appealability under G.S. 1A-1, Rule 54(b).
When the liability of Cook to Export on the indemnity agreement has been determined, Cook may appeal. His exception to the entry of the partial summary judgment will be preserved.
Appeal dismissed.
HARRY C. MARTIN and WELLS, JJ., concur.
