Kirkman v. Wilson

86 N.C. App. 561 | N.C. Ct. App. | 1987

PHILLIPS, Judge.

This appeal is not authorized and we dismiss it. It is from an interlocutory order denying a motion to dismiss plaintiffs’ action and a substantial right is not affected. Oestreicher v. American National Stores, Inc., 290 N.C. 118, 225 S.E. 2d 797 (1976). That the trial judge amended the order to state that it is a “final Judgment” did not change its nature, Tridyn Industries, Inc. v. American Mutual Insurance Co., 296 N.C. 486, 251 S.E. 2d 443 (1979), and make appealable what is clearly not appealable under the provisions of G.S. 1-277 and G.S. 7A-27. Fraser v. DiSanti, 75 N.C. App. 654, 331 S.E. 2d 217, disc. rev. denied, 315 N.C. 183, 337 S.E. 2d 856 (1985). Furthermore, in denying defendants’ motion to dismiss no determination was made that is subject to appellate review. Contrary to defendants’ impression, the trial court did not strike the defense based upon the Marketable Title Act; it merely observed that there is no precedent for defendants’ claim that their unbroken chain of record title to the land for more than 30 years rendered unenforceable plaintiffs’ claims as remainder-men under the will of A. E. Kirkman. This observation does not prevent defendants from continuing to assert the Marketable Title Act in their defense. But even if it did, other issues in the case would still remain to be tried, as the defendants pled three other defenses, any of which, from ought we know, might control the case. The amendment to the order undertaking to authorize defendants’ immediate appeal is not sanctioned by Rule 54(b), N.C. Rules of Civil Procedure —which by its terms is limited to instances where less than all the claims made in a case are finally adjudicated. Too, while Rule 54(b) makes it possible to appeal before an entire case has been adjudicated, it does not authorize the appeal of claims that have not been finally adjudicated. Though the contentions of the parties concerning the applicability of the Marketable Title Act are interesting, under the record no question concerning that Act is properly before us, and we will not anticipate such a question and determine it.

Appeal dismissed.

Chief Judge HEDRICK and Judge ORR concur.