Martin v. Flippin

7 Citing cases

  1. Lowder v. Mills, Inc.

    301 N.C. 561 (N.C. 1981)   Cited 60 times   2 Legal Analyses
    Holding that upon a party noticing an appeal, "the court lost jurisdiction to take further action on the contempt matter"

    In the instant case, defendants excepted and gave oral notice of appeal on 9 May 1980 from Judge Seay's overruling their objections to the court's jurisdiction to hear matters outside the Twentieth Judicial District. The ruling of the trial court affected a substantial right of defendants and was therefore appealable. G.S. 1-277; Steele v. Moore-Flesher Hauling Co., 260 N.C. 486, 133 S.E.2d 197 (1963); Veazey v. City of Durham, supra; Martin v. Flippin, 101 N.C. 452, 8 S.E. 345 (1888). Since defendants' subsequent perfection of the appeal related back to the time of the giving of notice of appeal, all orders entered by Judge Seay after defendants' notice of appeal on 9 May 1980 are void for want of jurisdiction.

  2. Cowart v. Honeycutt

    257 N.C. 136 (N.C. 1962)   Cited 26 times
    In Cowart, the court applied the general rule that "`[i]f a misrepresentation amounting to fraud is made as to any matter embraced in the release the instrument is vitiated as a whole, and not merely as to the matter to which the misrepresentation relates; every portion and clause of a release voidable for fraud in its inception is unenforceable and not binding.'"

    The appeal here is fragmentary and premature. In consequence, it falls under the ban of the general rule forbidding fragmentary appeals, and must be dismissed. Jenkins v. Trantham, 244 N.C. 422 94 S.E.2d 311; Veazey v. Durham. 231 N.C. 354, 57 S.E.2d 375, Privette v. Privette, 230 N.C. 52, 51 S.E.2d 925; Cole v. Trust Co., 221 N.C. 249, 20 S.E.2d 54; Yates v. Insurance Co., 176 N.C. 401, 97 S.E. 209; Yates v. Insurance Co., (same case), 173 N.C. 473, 92 S.E. 356; Chambers v. R. R., 172 N.C. 555, 90 S.E. 590; Shelby v. R. R., 147 N.C. 537, 61 S.E. 377; Martin v. Flippin, 101 N.C. 452, 8 S.E. 345; Arrington v. Arrington, 91 N.C. 301; Hines v. Hines, 84 N.C. 122. While this appeal must be dismissed as fragmentary and premature, we will nevertheless, as was done in Burgess v. Trevathan, 236 N.C. 157, 72 S.E.2d 231, and in Yates v. Insurance Co., 173 N.C. 473, 92 S.E. 356, exercise our discretionary power to express an opinion upon the question which defendant attempts to raise by his fragmentary and premature appeal.

  3. Veazey v. Durham

    231 N.C. 357 (N.C. 1950)   Cited 805 times
    Holding that improper interlocutory appeal does not deprive trial court of jurisdiction over case

    1. An appeal lies to the Supreme Court from a final judgment of the Superior Court. Johnson, v. Insurance Co., 219 N.C. 445, 14 S.E.2d 405; Grocery Co. v. Newman, 184 N.C. 370, 114 S.E. 535; Yates v. Insurance Co., 176 N.C. 401, 97 S.E. 209; Martin v. Flippin, 101 N.C. 452, 8 S.E. 345; Moore v. Hinnant, 87 N.C. 505. 2.

  4. Privette v. Privette

    230 N.C. 52 (N.C. 1949)   Cited 18 times
    In Privette v. Privette, 230 N.C. 52, 51 S.E.2d 925, it is said: "As a general rule an appeal will not lie until there is a final determination of the whole case.

    Moore v. Hinnant, 87 N.C. 505; S. v. Keeter, 80 N.C. 472; Railroad v. Warren, 92 N.C. 620; Hailey v. Gray, 93 N.C. 195. It lies from an interlocutory order only when it puts an end to the action or where it may destroy or impair or seriously imperil some substantial right of the appellant. Skinner v. Carter, 108 N.C. 106; Warren v. Stancill, 117 N.C. 112; Martin v. Flippin, 101 N.C. 452; Parrish v. R.R., 221 N.C. 292, 20 S.E.2d 299. An appeal from such order will be dismissed unless the order affects some substantial right and will work injury to the appellant if not corrected before appeal from the final judgment.

  5. Parrish v. R. R

    20 S.E.2d 299 (N.C. 1942)   Cited 29 times

    Ordinarily, it is only under such circumstances that an appeal will lie from an order other than a final judgment. Martin v. Flippin, 101 N.C. 452, 8 S.E. 345; Skinner v. Carter, 108 N.C. 106, 12 S.E. 908; Warren v. Stancill, 117 N.C. 112, 23 S.E. 216; Graded School Trustees v. Hinton, 156 N.C. 586, 71 S.E. 1087. But whether a substantial right of the appellant has been affected by the order in this case — whether he has been prejudiced sufficiently to warrant this Court in considering the merits of his appeal, Pemberton v. Greensboro, 205 N.C. 599, 172 S.E. 196 — need not be considered now; for it has been held that when the motion on which the order is based is made as a matter of right and is not addressed to the court's discretion, upon its denial the movant may appeal immediately to the Supreme Court and have his motion decided there on its merits.

  6. Johnson v. Insurance Co.

    1 S.E.2d 381 (N.C. 1939)   Cited 23 times

    Thomas v. Carteret County, 180 N.C. 109, 104 S.E. 75; Chambers v. R. R., 172 N.C. 555, 90 S.E. 590; Corporation Com. v. Mfg. Co., 185 N.C. 17, 116 S.E. 178. Moreover, if a departure be allowed in one case, it could be insisted on in another, and each litigant, conceiving himself to be aggrieved, could appeal and thus prolong litigation until it might become intolerably burdensome. Capps v. R. R., supra; Beck v. Bank, 157 N.C. 105, 72 S.E. 632; Pritchard v. Spring Co., 151 N.C. 249, 65 S.E. 968; Martin v. Flippin, 101 N.C. 452, 8 S.E. 345. See collection of authorities in opinion of Clark, C. J., in Williams v. Bailey, 177 N.C. 37, 97 S.E. 721.

  7. LEAK v. COVINGTON

    95 N.C. 193 (N.C. 1886)   Cited 12 times

    Dismissed. Cited: Spencer ex parte, post, 274; Martin v. Flippin, 101 N.C. 453; Wallace v. Douglas, 105 N.C. 43; Royster v. Wright, 118 N.C. 155; Smith v. Goldsboro, 121 N.C. 357; Hosiery Mill v. Hosiery Mill, 198 N.C. 598; Bank v. Bank, 204 N.C. 380.