Gardner v. Price Ex Rel. Price

Johnson, J. Tbis appeal is premature. It is from a nonappealable, interlocutory order. Veazey v. Durham, 231 N.C. 357, 57 S.E. 2d 377; Raleigh v. Edwards, 234 N.C. 528, 67 S.E. 2d 669. In the bearing below it was not contemplated tbat Judge Morris should bear and determine tbe entire controversy. Tbe parties stipulated tbat tbe inquiry should be limited to a determination of tbe single question whether tbe judgment entered by Judge Nimocks in tbe prior action brought to set aside tbe deed may be collaterally attacked in tbis proceeding. Tbe order entered by Judge Morris recites tbat tbe scope of inquiry was limited to tbis single aspect of tbe case. The procedure followed here is strikingly similar to tbat in Hines v. Hines, 84 N.C. 122. In tbat case, as here, counsel undertook to separate a question of law from other matters in controversy, leaving them to be disposed of afterwards, and have the question of law passed on in advance by tbis Court. In dismissing the appeal, Ashe, J., speaking for the Court, said: “the law involved is by a ‘pro forma’ judgment sent to tbis Court, wbilo the facts and merits of the case are retained in the court below to await the opinion of tbis Court upon the question of law. Such a proceeding is an innovation upon the practice of the Court, and to entertain the appeal would be establishing a bad precedent, to which tbis Court cannot give its sanction.” The rule announced in tbe Hines case is firmly embedded in our appellate procedure. See G.S. 1-277; Raleigh v. Edwards, supra; Veazey v. *655 Durham, supra; Emry v. Parker, 111 N.C. 261, 16 S.E. 236; Hilliard v. Oram, 106 N.C. 467, 11 S.E. 514; Blackwell v. McCain, 105 N.C. 460, 11 S.E. 360; Hicks v. Gooch, 93 N.C. 112. In Raleigh v. Edwards, supra, Ervin, J., speaking for tbe Court, said: “Appellate procedure is designed to- eliminate tbe unnecessary delay and expense of repeated fragmentary appeals, and to present tbe whole case for determination in a single appeal from tbe final judgment. To tbis end, tbe statute defining tbe right of appeal prescribes, in substance, that an appeal does not lie to tbe Supreme Court from an interlocutory order of the Superior Court, unless such interlocutory order deprives tbe appellant of a substantial right which be might lose if tbe order is not reviewed before final judgment. G.S. 1-277; . . .” In Hilliard v. Oram, supra, it is stated: “The court refused plaintiff judgment for recovery of the land sued for, upon the issues found, and entered an interlocutory judgment. Tbe appeal of tbe defendants is premature. They should have noted their exception, and after tbe trial is completed by a finding upon tbe other issue and a final judgment, an appeal will lie. Tbe Court here will not try causes by ‘piece-meal.’ Tbis has often been decided.” (Authorities cited.) Upon entry of an interlocutory order, like tbe one in tbe case at band, every right of tbe parties may be protected by entering timely exceptions, and it can affect no substantial right of anyone to postpone review of all rulings below until two trial judges accomplish tbe usual function of one before an appeal is taken. Conceding obiter, as we may, that Judge Morris’ ruling below is correct, nevertheless our established rule of appellate procedure must be upheld. Therefore tbe appeal is dismissed and tbe parties are left to proceed with tbe unfinished cause in tbe court below as if uninterrupted by tbis attempted appeal. Hicks v. Gooch, supra. Appeal dismissed.