Hunter v. City of Asheville

341 S.E.2d 743 (1986)

Robert HUNTER (Acct No. XXXXXX), Apple Tree Chevrolet (Acct No. XXXXXXX), Skyland Olds (Acct No. XXXXXXX), Mary Thrash (Acct No. XXXXXXX), W. Anderson (Acct No. XXXXXXX), Clarence E. Martin, Jr. (Acct No. XXXXXXX), Wayne Cooper (Acct No. XXXXXXX), v. CITY OF ASHEVILLE.

No. 8528SC1171.

Court of Appeals of North Carolina.

April 15, 1986.

Shuford, Best, Rowe, Brondyke and Orr by Robert F. Orr, Asheville, for plaintiffs-appellees.

Sarah Patterson Brison, Asheville, for defendant-appellant.

WELLS, Judge.

The question dispositive of the rights and obligations of the parties to this appeal is *744 whether the effective date of the annexation ordinance was 11 July 1983, the date the judgment of this Court holding the ordinance to be valid was certified, or whether the effective date of the ordinance was 6 December 1983, the date of our Supreme Court's order dismissing plaintiffs' appeal and denying discretionary review of our judgment.

N.C.Gen.Stat. § 160A-50 (1982) governs appeals from the enactment of annexation ordinances. Subsection (i) provides:

If part or all of the area annexed ... is the subject of an appeal to the superior court or Court of Appeals on the effective date of the ordinance, then the ordinance shall be deemed amended to make the effective date with respect to such area the date of the final judgment of the superior court or appellate division, whichever is appropriate....

The trial court found and concluded that the "final judgment" in the annexation case was the "judgment" of the Supreme Court dismissing the appeal and denying the petition for discretionary review. We disagree and reverse.

A judgment is a determination or declaration on the merits of the rights and obligations of the parties to an action. See 46 Am.Jur.2d Judgments § 1 (1969); see also Beam v. Almond, 271 N.C. 509, 157 S.E.2d 215 (1967); Russ v. Woodard, 232 N.C. 36, 59 S.E.2d 351 (1950); State v. Williamson, 61 N.C.App. 531, 301 S.E.2d 423 (1983). N.C.Gen.Stat. § 1A-1, Rule 54(a) of the Rules of Civil Procedure defines judgment as follows:

(a) DefinitionA judgment is either interlocutory or the final determination of the rights of the parties [emphasis supplied].

An order has been defined as being every direction of a court not included in a judgment. See 46 Am.Jur.2d Judgments § 3 (1969); see also State v. Williamson, supra. An order of an appellate court dismissing an appeal or denying a petition for review is not a judgment; it is not a ruling on the merits of the rights or obligations of the parties but is purely procedural in nature. Accordingly, we hold that the final judgment of the appellate division in the annexation case was the judgment of this Court certified to the court below on 11 July 1983. It follows that the annexation ordinance became effective the same date11 July 1983and that plaintiffs are not entitled to a refund of the taxes paid under protest. For the reasons stated, the judgment of the trial court must be reversed and this cause remanded for an order dismissing plaintiffs' action.

Reversed and remanded.

WHICHARD and COZORT, JJ., concur.