Summary
dismissing appeal from interlocutory order because "judge did not find there is no just reason for delay"
Summary of this case from Southeast Brun. Dist. v. City of SouthportOpinion
No. 7525DC427
Filed 17 December 1975
Appeal and Error 6; Rules of Civil Procedure 54 — order not adjudicating all claims — premature appeal Appeal is dismissed as premature where the order appealed from adjudicates fewer than all claims and is not a final judgment as to that claim because the judge did not find there is no just reason for delay. G.S. 1A-1, Rule 64 (b).
APPEAL by defendant from Beach, Judge. Order entered 3 March 1975 in District Court, BURKE County. Heard in the Court of Appeals 17 September 1975.
Simpson, Martin, Baker Aycock, by Wayne W. Martin, for the plaintiff.
Turner, Rollins Rollins, by Elizabeth O. Rollins, for the defendant.
Plaintiff instituted this action for absolute divorce on the grounds of separation for one year. Defendant filed answer denying the material allegations of the complaint and additionally filed a counterclaim for alimony without divorce on the grounds of abandonment. A hearing was conducted before Judge Beach on 16 December 1974 upon defendant's application for alimony pendente lite and counsel fees. By order dated 16 December 1974 defendant was denied alimony pendente lite and counsel fees. Plaintiff thereafter filed a motion to dismiss defendant's counterclaim for failure to state a claim upon which relief can be granted. Plaintiff's motion to dismiss was allowed by order entered 3 March 1975, and defendant appealed. The primary action has not yet been tried.
The order from which defendant has appealed adjudicates fewer than all claims and is not a final judgment as to that claim because the judge did not find there is no just reason for delay. The order 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, and therefore is not subject to review by appeal. G.S. 1A-1, Rule 54 (b).
Appeal dismissed.
Judges VAUGHN and MARTIN concur.