Barnes v. Rorie

PARKER, Judge. Rule 4 of the Rules of Practice in the Court of Appeals as adopted by our Supreme Court on 20 January 1971, is as follows: “4. Appeals — When Not Entertained. The Court of Appeals will not entertain an appeal: From the ruling on an interlocutory motion, unless provided for elsewhere. Any interested party may enter an exception to the ruling on the motion and present the question thus raised to this Court on the final appeal; provided, that when any interested party conceives that he [754] will suffer substantial harm from the ruling on the motion, unless the ruling is reviewed by this Court prior to the trial of the cause on its merits, he may petition this Court for a writ of certiorari within thirty days from the date of the entry of the order ruling on the motion.” The orders from which plaintiff here attempts to appeal were rulings by the trial judge on interlocutory motions. No petition for writ of certiorari was filed. None of these interlocutory orders affected a substantial right and plaintiff will suffer no substantial harm if the trial court’s rulings are not reviewed by this Court prior to the trial of the cause on its merits. Therefore, plaintiff’s attempted appeal must be dismissed. Gardner v. Brady, 13 N.C. App. 647, 186 S.E. 2d 659. Pleadings are not to be read to the jury, unless otherwise ordered by the trial judge, G.S. 1A-1, Rule 7(d), and if upon the trial plaintiff offers evidence to support his alternative theory that the owner-defendant was liable because of negligence in allowing her car to be driven by a person known by her to be a reckless driver, the court may then allow the pleadings to be amended to conform to the proof, G.S. 1A-1, Rule 15(b). While there is no such pleading as a “Reply to a Reply,” G.S. 1A-1, Rule 7(a), we perceive no harm to plaintiff in this case in the order allowing defendants to file such a document. The question of whether defendants’ counterclaims are barred by the statute of limitations is in any event appropriately presented and can be decided on the pleadings properly filed in this case. (On this question, see: Brumble v. Brown, 71 N.C. 513; 1 McIntosh, N.C. Practice and Procedure, 2d, § 327.) Fragmentary appeals serve principally to delay disposition of causes upon their merits. It is a sound policy of our law not to permit appeals from interlocutory orders unless they affect substantial rights in such manner that the party whose rights are adversely affected will suffer substantial harm if the interlocutory ruling is not reviewed by the appellate court prior to trial of the cause on its merits. On the present record, such is not the case. Plaintiff’s attempted appeal is Dismissed. Judges Britt and Hedrick concur.