Opinion
No. 8015SC838
Filed 7 April 1981
Appeal and Error 6.2 — order not final — appeal premature In a proceeding for a partition sale of real property owned by the parties as tenants in common where petitioner, as a second claim, prayed that respondent be held to be indebted to her and that she have a lien on the proceeds of the sale on account of a deed of trust which had been placed on the property for the benefit of respondent, the trial court's order dismissing petitioner's second claim for relief was not appealable, since it was not a final judgment, all claims not having been determined, and the superior court did not make a finding that there was no just reason for delay, and since the order did not affect a substantial right which will work injury to petitioner if not corrected before final judgment. G.S. 1A-1, Rule 54(b); G.S. 1-277.
APPEAL by petitioner from Brewer, Judge. Order entered 20 May 1980 in Superior Court, ORANGE County. Heard in the Court of Appeals 12 March 1981.
Hogue and Strickland, by Lucy D. Strickland, for petitioner appellant.
Haywood, Denny and Miller, by James H. Johnson, III and Michael W. Patrick, for respondent appellant.
Judge HILL dissenting.
Petitioner commenced this proceeding for a partition sale of real property she and the respondent owned as tenants in common. As a second claim in her petition, she prayed that the respondent be held to be indebted to her and that she have a lien on the proceeds of the sale on account of a deed of trust which had been placed on the property for the benefit of the respondent. The petitioner alleged that she had received none of the proceeds from the loan which the deed of trust secured and that she had not intended to make a gift to the respondent of the loan proceeds. At the time the deed of trust was placed on the property, the parties were married and owned the property as tenants by the entirety.
The court dismissed petitioner's second claim for relief, and the petitioner appealed.
The threshold question in this case is whether the order dismissing the petitioner's second claim for relief is appealable. It is not a final judgment since all claims have not been determined. It involves multiple claims but the superior court has not made a finding that there is no just reason for delay. For that reason, it is not appealable under G.S. 1A-1, Rule 54(b). A substantial right of the petitioner has been affected, but we do not believe it will work injury to the petitioner if this is not corrected before the final judgment. This keeps the order from being appealable under G.S. 1-277. See Cook v. Tobacco Co., 47 N.C. App. 187, 266 S.E.2d 754 (1980) and the cases cited therein for a discussion as to when an order affects a substantial right which will work injury to a party if not corrected before final judgment.
We hold that this appeal be dismissed. The petitioner will have her exception preserved to the entry of the order dismissing her second claim for relief and may appeal from the entry of a final judgment.
Appeal dismissed.
Judge HEDRICK concurs.
Judge HILL dissents.