In Re Watson

318 S.E.2d 544 (1984)

In re Bledsoe WATSON, Administrator of the Estate of Ray Junior Watson, Deceased.

No. 8319SC469.

Court of Appeals of North Carolina.

August 21, 1984.

*546 Tuggle, Duggins, Meschan, Thornton & Elrod, by Richard L. Vanore, Greensboro, for petitioner appellant.

Ottway Burton, P.A., by Ottway Burton, Asheboro, for appellee Archie L. Shirley.

JOHNSON, Judge.

Neither party presents the issue to this Court, but as a threshold jurisdictional question we must determine whether Judge Seay's order is presently appealable. State v. School, 299 N.C. 351, 261 S.E.2d 908, aff'd on rehearing, 299 N.C. 731, 265 S.E.2d 387 (per curiam), appeal dismissed 449 U.S. 807, 101 S. Ct. 55, 66 L. Ed. 11 (1980). For the reasons set out below we conclude that it is not.

The order entered by the clerk was within his authority. The clerk is authorized to "[o]pen, vacate, modify, set aside, or enter as of a former time, decrees or orders of his court." G.S. 7A-103(9). This broad grant necessarily includes the power to correct, nunc pro tunc, orders entered on erroneous misapprehension of the facts, as *547 here. The Superior Court essentially adopted and affirmed the clerk's order.

Petitioner argues that since Shirley had taken a voluntary dismissal of his suit there were no "claims" against the estate. By extension, then, he was entitled to his discharge in August 1980 under G.S. 28A-23-1, and therefore the clerk could not order the administration continued. The applicable General Statutes do not define "claim." They do distinguish between "claims" and "claims duly presented." G.S. 28A-19-1. [1] A personal injury claim against the estate is "duly presented" upon filing, indicating a legislative recognition of its existence as an unpresented claim before filing. G.S. 28A-19-1(2). The statutes further provide for the payment of "unliquidated" or "contingent" claims. G.S. 28A-19-5. This may be by such method as the clerk may order, G.S. 28A-19-5(4), including, it would seem, holding the estate open until the lawsuit was finally abandoned or resolved. The dictionaries also do not define "claim" as requiring a specific demand filed or reduced to writing. See Black's Law Dictionary 224 (5th ed. 1979); 14 C.J.S. Claim (1939). A claim may be a cause of action, Id. at 1184, which has generally been defined not as some legal filing, but as the existence of a set of facts justifying judicial relief. Exum v. Boyles, 272 N.C. 567, 158 S.E.2d 845 (1968); see Black's Law Dictionary 201 (5th ed. 1979); 1 C.J.S. actions § 8 (1936). Accordingly, we hold that the clerk correctly treated Shirley's voluntarily dismissed suit as a "claim" and acted within his authority in correcting his erroneous discharge of petitioner.

The ruling from which petitioner attempts to appeal clearly did not constitute a final judgment, or other final termination of the action. It therefore was interlocutory: "a ruling is interlocutory in nature if it does not determine the issues but directs some further proceeding preliminary to a decree." Blackwelder v. Dept. of Human Resources, 60 N.C.App. 331, 333, 299 S.E.2d 777, 779 (1983). The present order, by lawfully correcting an earlier erroneous order, merely contemplated continued administration of an established estate and its final settlement after resolution of the one outstanding claim.

Accordingly, since the trial court did not certify that there was no just reasons for delay, G.S. 1A-1, Rule 54(b), no appeal would lie unless the order affected a substantial right. G.S. 1-277; G.S. 7A-27; Blackwelder, supra. The "substantial right" exception does not apply unless the appellant would lose some substantial right if the ruling or order is not reviewed before final judgment in the trial division. Id.

No substantial right appears to be affected by continuing petitioner as administrator. This is particularly true in light of the fact that petitioner himself originally applied to serve as administrator; nothing in the record suggests that any other person would be preferable. It is true that the appointment serves to expose the estate to liability for the decedent's alleged tort, but that is inherent in the very nature of the estate itself and no especial prejudice results.

The real effect of the order is to allow Shirley to continue his action against the estate. The resulting pretrial procedure and ensuing trial do not affect a substantial right, however. Avoidance of a trial is not a substantial right entitling a party to immediate appeal. Industries, Inc. v. Insurance Co., 296 N.C. 486, 251 S.E.2d 443 (1979); Blackwelder, supra. Although this rule ordinarily applies to attempted appeals in the same case in which the trial is to be held, its logic is equally applicable to obviously interdependent matters such as those at issue here.

The trial division should therefore resolve the liability issue before appeal in *548 this case. Petitioner has no right of appeal presently, and his appeal is accordingly

Dismissed.

HEDRICK and HILL, JJ., concur.

[1] G.S. 28A-19-1 was rewritten by 1977 N.C.Sess. Laws c. 446, s. 1. That Act, effective 1 September 1977, applied only to the administration of estates of persons who died on or after its effective date. 1977 N.C.Sess.Laws c. 446, s. 5. Ray Junior Watson died in July 1977; accordingly the new section does not apply and we express no opinion as to its effect.