FIRST AMER. SAV. & LOAN v. Satterfield

359 S.E.2d 812 (1987)

FIRST AMERICAN SAVINGS & LOAN ASSOCIATION v. G.H. SATTERFIELD, Jr., and wife, Joyce Satterfield.

No. 873SC79.

Court of Appeals of North Carolina.

September 15, 1987.

*813 Wyrick, Robbins, Yates, Ponton & Kirby by Samuel T. Wyrick, III, and Mark C. Kirby, Raleigh, for plaintiff-appellant.

Connor, Bunn, Rogerson & Woodard, P.A. by David M. Connor, Wilson, for defendant-appellees.

MARTIN, Judge.

The question of whether or not an appeal lies from the superior court's order setting aside the judgment has not been presented or argued by either party to this appeal. It is well-established, however, that if the appealing party has no right of appeal, the appellate court should, on its own motion, dismiss the appeal even when the question of appealability has not been raised by the parties. Bailey v. Gooding, 301 N.C. 205, 270 S.E.2d 431 (1980). We conclude that plaintiff's appeal is premature and, accordingly, we dismiss it.

The order setting aside the 18 July 1986 judgment against defendants is not a final judgment. The order is interlocutory because further action by the trial court is necessary to settle and determine the entire controversy between the parties. See Veazey v. City of Durham, 231 N.C. 357, 57 S.E.2d 377 (1950). Interlocutory orders are immediately appealable only if they affect a substantial right and will work injury to the appellant if not corrected before an appeal from a final judgment. G.S. 1-277(a), G.S. 7A-27(d), Bailey v. Gooding, supra. A right is substantial only if it "will clearly be lost or irremediably adversely affected if the order is not reviewable before final judgment." Blackwelder v. Dept. of Human Resources, 60 N.C.App. 331, 335, 299 S.E.2d 777, 780 (1983).

As stated by our Supreme Court, the "`substantial right' test for appealability of interlocutory orders is more easily stated than applied. It is usually necessary to resolve the question in each case by considering the particular facts of that case and the procedural context in which the order from which appeal is sought was entered." Waters v. Qualified Personnel, Inc., 294 N.C. 200, 208, 240 S.E.2d 338, 343 (1978). Accordingly, the appellate courts of this *814 State have previously held that an order setting aside summary judgment in defendant's favor did not affect a substantial right of the defendant and, thus, was not immediately appealable. Waters v. Qualified Personnel, Inc., supra. Likewise, it has been held that an order setting aside an entry of default and default judgment did not affect a substantial right and was not appealable. Bailey v. Gooding, supra. See also Hollingsworth GMC Trucks, Inc. v. Smith, 249 N.C. 764, 107 S.E.2d 746 (1959) (order setting aside judgment of nonsuit not appealable); Cox v. Cox, 246 N.C. 528, 98 S.E.2d 879 (1957) (order setting aside clerk's entry of voluntary nonsuit not appealable). Taken together, these cases establish that "avoidance of a rehearing or trial is not a `substantial right' entitling a party to an immediate appeal." Blackwelder v. Dept. of Human Resources, supra 60 N.C.App. at 335, 299 S.E.2d at 780.

In the present case, no right of plaintiff will be lost by delaying its appeal until after a final judgment. Plaintiff is affected by its inability to immediately appeal the order setting aside the judgment only to the extent that it must establish defendants' liability and the amount thereof by proper evidence, rather than by relying upon the purported confession of judgment. Under the facts of this case, we do not consider the avoidance of having to affirmatively prove one's claim to be a substantial right. See Bailey v. Gooding, supra; Waters v. Qualified Personnel, Inc., supra. Moreover, plaintiff's exception to the order preserves its right to assign error to the order setting aside the 18 July 1986 judgment by confession should there be an appeal from the final judgment in the case. Id.

Appeal dismissed.

BECTON and COZORT, JJ., concur.