52 N.C. App. 370 | N.C. Ct. App. | 1981
That portion of Judge Black’s order dated 28 August 1980 denying defendant’s Rule 12(b)(6) and Rule 56(b) motions is clearly unappealable. State v. Fayetteville Street Christian School, 299 N.C. 351, 261 S.E. 2d 908, appeal dismissed, --- U.S. ---, 66 L.Ed. 2d 11, 101 S.Ct. 55 (1980); O’Neill v. Southern National Bank, 40
Defendant’s “motion to dismiss,” which was filed after the matter had been scheduled for hearing on plaintiffs application for alimony pendente lite, alleged that plaintiff and defendant had entered into a “separation agreement” and that such agreement was a bar to plaintiff’s claim for alimony. Although not denominated as such, the motion was clearly one for summary judgment pursuant to Rule 56. When the matter came on for hearing on plaintiff’s application for alimony pendente lite, Judge Brown inexplicably considered and ruled on defendant’s “motion to dismiss.” He not only denied defendant’s motion, but he gratuitously declared the “separation agreement” not to be “valid, legal, or binding.” This untimely and gratuitous ruling on defendant’s “motion to dismiss” precipitated the fatuous proceedings which followed, this premature appeal, and the resulting unreasonable delay in the disposition of a relatively simple matter. Therefore, since Judge Black’s 28 August 1980 order was predicated on Judge Brown’s denial of defendant’s motion for summary judgment and his gratuitous declaration that the separation agreement was invalid, the appeal is premature and will be dismissed.
Dismissed.
