State v. Childs

Annotate this Case

144 S.E.2d 653 (1965)

265 N.C. 575

STATE v. Albert Bobby CHILDS.

No. 94.

Supreme Court of North Carolina.

November 10, 1965.

*655 Atty. Gen. T. W. Bruton, for the State.

Ruben Dailey and Robert Riddle, Asheville, for defendant appellant.


Pursuant to Rule 13, Rules of Practice in the Supreme Court, the Attorney General's motion is allowed.

Not every order or judgment of the superior court is immediately appealable to the Supreme Court. The statute, G.S. § 1-277, regulates the practice in respect to when an order or judgment is subject to immediate review. This statute as construed and applied by numerous decisions of this Court is well analyzed and explained in detail by Ervin, J., in Veazey v. City of Durham, 231 N.C. 357, 57 S.E.2d 377. It would serve no useful purpose to restate here the various propositions there elucidated. The order entered by Judge Mallard here is not a final judgment which disposes of these cases as to the State and the defendant, leaving nothing to be judicially determined between them in the trial court. The order entered by Judge Mallard is an interlocutory order and was made during the pendency of these cases, which does not dispose of these cases, but leaves them for further action by the trial court in order to settle and determine the whole controversy in these three cases between the State and defendant. In Privette v. Privette, 230 N.C. 52, 51 S.E.2d 925, it is said: "As a general rule an appeal will not lie until there is a final determination of the whole case. [Citing cases.] It lies from an interlocutory order only when it puts an end to the action or where it may destroy or impair or seriously imperil some substantial right of the appellant." Judge Mallard's interlocutory order does not put an end to these cases, and it does not destroy or impair or seriously imperil any substantial right of this defendant, for the reason that defendant's remedy is to note an exception at the time of the entry of Judge Mallard's order, as he did, to be considered on appeal from a final judgment adverse to defendant, if there is one. 2 McIntosh, North Carolina Practice and Procedure, 2d ed., § 1782(3). See also State v. Scales, 242 N.C. 400, 405, 87 S.E.2d 916, 920; Ponder v. Cobb, 257 N. C. 281, 300, 126 S.E.2d 67, 81. There is no more effective way to procrastinate the administration of justice than that of bringing cases to an appellate court piecemeal through the medium of successive appeals from interlocutory orders. The appeal here is fragmentary and premature. In consequence, it falls under the ban of the general rule forbidding fragmentary and premature appeals from an interlocutory order, and must be dismissed. Cowart v. Honeycutt, 257 N.C. 136, 125 S.E.2d 382.

Appeal dismissed.

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