Horne v. NOBILITY HOMES, INCORPORATED

Annotate this Case

363 S.E.2d 642 (1988)

88 N.C. App. 476

Troy W. HORNE, d/b/a Troy's Mobile Homes v. NOBILITY HOMES, INCORPORATED and Bellefonte Underwriters Insurance Company.

No. 8725SC648.

Court of Appeals of North Carolina.

January 19, 1988.

*643 Stephen T. Daniel & Associates, P.A. by Stephen T. Daniel, Morganton, for plaintiff-appellant.

Patton, Starnes, Thompson, Aycock & Teele, P.A. by Robert L. Thompson, Morganton, for defendants-appellees.

SMITH, Judge.

The order from which plaintiff appeals is interlocutory. "An interlocutory order is one made during the pendency of an action, which does not dispose of the case, but leaves it for further action by the trial court in order to settle and determine the entire controversy." Veazey v. Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381, reh'g. denied, 232 N.C. 744, 59 S.E.2d 429 (1950). Accord McKinney v. Royal Globe Insur. Co., 64 N.C.App. 370, 307 S.E.2d 390 (1983). An order setting aside a default judgment is interlocutory as "it does not finally dispose of the case and requires further action by the trial court." Bailey v. Gooding, 301 N.C. 205, 209, 270 S.E.2d 431, 434 (1980).

No appeal lies from an interlocutory order unless it affects a substantial right and will result in injury if not reviewed before final judgment. G.S. 1-277(a); G.S. 7A-27(d); Waters v. Personnel, Inc., 294 N.C. 200, 240 S.E.2d 338 (1978). Accord Fraser v. Di Santi, 75 N.C.App. 654, 331 S.E.2d 217, disc. rev. denied, 315 N.C. 183, 337 S.E.2d 856 (1985). If the appellant's rights "would be fully and adequately protected by an exception to the order that could then be assigned as error on appeal after final judgment," there is no right to an immediate appeal. Bailey v. Gooding, supra, 301 N.C. at 210, 270 S.E.2d at 434.

Plaintiff contends our refusal to hear this appeal will deny a substantial right. By affidavit, plaintiff's counsel submits that Nobility's Reidsville plant has been closed and is now for sale. Plaintiff argues that a dismissal of this appeal will result in irreparable harm to plaintiff in that Nobility's remaining assets will be beyond the jurisdiction of North Carolina courts thus hindering recovery on a final judgment. We disagree. Plaintiff has not shown that the attachment provisions of G.S. 1-440.1 et seq. afford no relief as to Nobility's assets. Accordingly, plaintiff has not shown that it will be deprived of a substantial right.

In this case, plaintiff's objection to the order setting aside the default judgment is protected by its exception to the order. Avoidance of a trial is not a substantial right entitling plaintiff to an immediate appeal. Waters v. Personnel, Inc., supra; Bailey v. Gooding, supra. No right will be lost by delaying the appeal until after a final judgment is entered. As the appeal is premature, it must be dismissed. Bailey v. Gooding, supra.

Appeal dismissed.

ARNOLD and WELLS, JJ., concur.