RB Deal Construction Co. v. Spainhour

296 S.E.2d 822 (1982)

R.B. DEAL CONSTRUCTION CO. v. John Henry SPAINHOUR and Robert D. Spainhour, d/b/a Spainhour Brothers Contractors.

No. 8121SC1293.

Court of Appeals of North Carolina.

November 16, 1982.

*823 Womble, Carlyle, Sandridge & Rice by Allan R. Gitter and Richard T. Rice, Winston-Salem, for plaintiff-appellee.

Stover, Dellinger & Browder by James L. Dellinger, Jr., King, for defendants-appellants.

MARTIN, Judge.

Defendants have appealed from an order setting aside a judgment and granting a new trial under Rule 60(b) of the North Carolina Rules of Civil Procedure. The order entered pursuant to Rule 60(b), setting aside the judgment, is interlocutory and the appeal is premature. Similar to a grant of a 60(b) motion to set aside a default judgment, this order is not appealable as "it does not finally dispose of the case and requires further action by the trial court." See Shaw v. Pedersen, 53 N.C.App. 796, 798, 281 S.E.2d 700, 701 (1981), quoting Bailey v. Gooding, 301 N.C. 205, 209, 270 S.E.2d 431, 434 (1980).

Defendants have adequately preserved the question of the appropriateness of the trial court's order setting aside the judgment and granting a new trial. That question may be raised, if necessary, upon an appeal from the final judgment following the retrial of plaintiff's original claim on its merits. Accordingly, defendants' appeal is

Dismissed.

HEDRICK and HILL, JJ., concur.