City of Raleigh v. Edwards

Annotate this Case

67 S.E.2d 669 (1951)

234 N.C. 528

CITY OF RALEIGH v. EDWARDS et al.

No. 452.

Supreme Court of North Carolina.

November 21, 1951.

*671 Paul F. Smith and Henry H. Sink, Raleigh, for petitioner, appellant and appellee.

Ruark & Ruark and Joseph C. Moore, Jr., all of Raleigh, for interveners, appellants and appellees.

ERVIN, Justice.

This question arises at the threshold of plaintiff's appeal: Is an interlocutory order granting a motion to intervene in a condemnation proceeding appealable?

Appellate procedure is designed to eliminate the unnecessary delay and expense of repeated fragmentary appeals, and to present the whole case for determination in a single appeal from the final judgment. To this end, the statute defining the right of appeal prescribes, in substance, that an appeal does not lie to the supreme court from an interlocutory order of the superior court, unless such interlocutory order deprives the appellant of a substantial right which he might lose if the order is not reviewed before final judgment. G.S. § 1-277; Veazey v. City of Durham, 231 N.C. 357, 57 S.E.2d 377; Emry v. Parker, 111 N.C. 261, 16 S.E. 236.

In permitting intervention in this cause, the court acted under the statutes regulating the procedure in condemnation proceedings. These statutes plainly imply that all persons "who own or have, or claim to own or have, estates or interests in the * * * real estate" sought to be taken for public use are to be made parties to the proceeding for its condemnation. G.S. § 40-12; Hill v. Glendon & G. Mining & Mfg. Co., 113 N.C. 259, 18 S.E. 171. They do not provide, however, that the court is to try and determine the validity of a claim of ownership advanced by an omitted claimant before it permits him to intervene in the proceeding for the purpose of asserting his claim.

The interlocutory order authorizing intervention in this cause has decided nothing whatever against the petitioner. It merely grants leave to the interveners to become parties to this proceeding so that they may assert that they own an interest in the land sought to be condemned and are entitled to relief accordingly. It clearly contemplates that the validity of the claim of the interveners will be determined in a subsequent trial on the merits conforming to appropriate and established procedure in the event the pleadings of the parties raise issues of law or fact relating to the claim. Inasmuch as no pleadings bearing on the claim have been filed up to the present moment, no such issues have yet arisen.

We must assume that the superior court will adjudge the claim of the interveners to be invalid in case it appears at a trial on the merits that the claim is without basis either in law or in fact. There is certainly nothing in the record which indicates that the petitioner can not fully protect whatever legal rights it may have by an appeal to the supreme court from an adverse decision of the superior court awarding the interveners relief on the merits.

These things being true, the interlocutory order allowing intervention does not deprive the petitioner of a substantial right which it may lose if the order is not reviewed before final judgment. In consequence, the plaintiff's appeal is fragmentary and premature.

This conclusion has explicit support in well considered decisions recognizing and enforcing the specific rule that an order granting a motion to intervene is not appealable. Gammon v. Johnson, 126 N.C. 64, 35 S.E. 185; Bennett v. Shelton, 117 N. C. 103, 23 S.E. 95. Moreover, it finds implicit sanction in the cases applying the general rule that ordinarily no appeal lies from an order granting a motion for the joinder of additional parties. Colbert v. Collins, 227 N.C. 395, 42 S.E.2d 349; Service Fire Insurance Co. of New York v. Horton Motor Lines, Inc., 225 N.C. 588, 35 S.E.2d 879; Morgan v. Turnage Co., 213 N.C. 425, 196 S.E. 307; Wilmington v. Board of Education, 210 N.C. 197, 185 S.E. 767; Barbee v. Cannady, 191 N.C. 529, 132 S.E. 572; Joyner v. Champion Fibre Co., 178 N.C. 634, 101 S.E. 373; *672 Armfield Co. v. Saleeby, 178 N.C. 298, 100 S.E. 611; Etchison v. McGuire, 147 N.C. 388, 61 S.E. 196; Bernard v. Shemwell, 139 N.C. 446, 52 S.E. 64; Sprague v. Bond, 111 N.C. 425, 16 S.E. 412; Emry v. Parker, supra; Sneeden v. Harris, 107 N.C. 311, 12 S.E. 205; Lane v. Richardson, 101 N.C. 181, 7 S.E. 710; White v. Utley, 94 N.C. 511.

The petitioner may preserve its exception to the order allowing intervention, and ask the supreme court to consider such exception in case it appeals from a final judgment of the superior court awarding the interveners relief on the merits. G.S. § 1-278; Bennett v. Shelton, supra; Emry v. Parker, supra.

This brings us to the appeal of the interveners from the provisions of the order in which the court undertook to specify in advance what their pleadings should allege and what legal positions they should take at subsequent stages of the proceeding. As these matters were not before the court for decision at the time it granted leave to intervene, these provisions constitute obiter dicta, and are without binding force. For this reason, they do not impair any substantial right of the interveners, or warrant their appeal.

Appeal of petitioner dismissed.

Appeal of interveners dismissed.