214 S.E.2d 612 | N.C. Ct. App. | 1975
Delmas DURHAM and wife, Irene W. Durham
v.
Margie M. CREECH (widow), et al.
Court of Appeals of North Carolina.
*614 L. Austin Stevens and E. V. Wilkins, Smithfield, for plaintiffs-appellants.
W. R. Britt and James A. Wellons, Jr., Smithfield, for defendants-appellees.
HEDRICK, Judge.
Although the parties have not raised the question, we must consider whether the trial judge's order dismissing plaintiffs' claim against the defendants Smith is presently appealable. Rule 54(b) of the Rules of Civil Procedure provides:
*615 "Judgment upon multiple claims or involving multiple parties.When more than one claim for relief is presented in an action, whether as a claim, counterclaim, crossclaim, or third-party claim, or when multiple parties are involved, the court may enter a final judgment as to one or more but fewer than all of the claims or parties only if there is no just reason for delay and it is so determined in the judgment. Such judgment shall then be subject to review by appeal or as otherwise provided by these rules or other statutes. In the absence of entry of such a final judgment, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties and shall not then be subject to review either by appeal or otherwise except as expressly provided by these rules or other statutes. Similarly, in the absence of entry of such a final judgment, any order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties."
In the recent cases of Leasings, Inc. v. Dan-Cleve Corp., 25 N.C.App. 18, 212 S.E.2d 41 (1975) and Arnold v. Howard, 24 N.C. App. 255, 210 S.E.2d 492 (1974), this court dismissed the appeals where the judgments purported to adjudicate "the rights and liabilities of fewer than all the parties" and contained no determination by the trial judges that there was "no just reason for delay". For a more complete discussion of the purpose and need for Rule 54(b), see Leasings, Inc. v. Dan-Cleve Corp. supra, and Arnold v. Howard, supra.
In Arnold v. Howard, supra, Judge Parker, speaking for this court said:
"Under the North Carolina Rule, the trial court is granted the discretionary power to enter a final judgment as to one or more but fewer than all of the claims or parties, `only if there is no just reason for delay and it is so determined in the judgment.' (Emphasis added.) By making the express determination in the judgment that there is `no just reason for delay,' the trial judge in effect certifies that the judgment is a final judgment and subject to immediate appeal. In the absence of such an express determination in the judgment, Rule 54(b) makes `any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties,' interlocutory and not final. By express provision of the Rule, such an order remains `subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties,' and such an order is not then `subject to review either by appeal or otherwise except as expressly provided by these rules or other statutes.' G.S. § 1-277 is not such an express authorization. See Comment to G.S. § 1A-1, Rule 54(b)." 24 N.C.App. at 258-259, 210 S.E.2d at 494.
In the present case, the order dismissing plaintiffs' claim against the defendants Smith and dismissing by consent the counterclaim of the defendants Smith against the plaintiffs adjudicates fewer than all the claims of all the parties and does not contain a determination by the trial judge that there was "no just reason for delay" in entering such order. Therefore, the order is interlocutory and presently not appealable. Rule 54(b); Leasings, Inc. v. Dan-Cleve Corp., supra; Arnold v. Howard, supra.
Since the order dismissing plaintiffs' claim and the counterclaim of defendants Smith appears to be a final order except for the trial court's failure to certify its finality by finding that there was "no just reason for delay", a legitimate question arises as to what follows in the trial court upon our dismissal of this appeal. We believe the answer is to be found in that portion of Rule 54(b) which states:
*616 "Similarly, in the absence of entry of such a final judgment, any order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties."
When and if plaintiffs' claim against the defendants Creech comes on for trial, the trial court may revise the order dismissing plaintiffs' claim as to defendants Smith and as to the counterclaim of the defendants Smith against the plaintiffs "at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties". If the trial court makes or fails to make any revision of the "interlocutory" order, the aggrieved parties, provided they have preserved their exception to any such order, may then challenge the correctness of the "interlocutory" order or any revision thereof on an appeal from a final judgment which determines all of the rights and claims of all of the parties.
For the reasons stated, the purported appeal of the plaintiffs is dismissed and the cause is remanded to the Superior Court for further proceedings.
Dismissed and remanded.
BROCK, C. J., and MORRIS, J., concur.
