Pardue v. Charlotte Motor Speedway, Inc., 2 N.C. App. 403 (1968)

Sept. 18, 1968 · North Carolina Court of Appeals · No. 6823SC287

2 N.C. App. 403

MRS. BETTY S. PARDUE, Administratrix of the Estate of JAMES M. PARDUE, Deceased v. CHARLOTTE MOTOR SPEEDWAY, INC.

No. 6823SC287

(Filed 18 September 1968)

Appeal and Error § 6; Pleadings § 32— appeal from order allowing motion to amend pursuant to G.S. 1-131 — dismissal as premature

Where plaintiff moves pursuant to G.S. 1-131 to amend bis complaint following certification of a Supreme Court opinion affirming a judgment sustaining defendant’s demurrer, defendant’s appeal from the order allowing the amendment is premature and will be dismissed by the Court of Appeals ex mero motu, the proper procedure being to note an exception and appeal from the final judgment if adverse to defendant.

Appeal by defendant from Gambill, J., at the 29 April 1968 Session of WilKes Superior Court.

This case was before the Supreme Court on demurrer at the Fall Term 1967. An opinion was entered during the Spring Term 1968 affirming the Superior Court in sustaining the demurrer to the complaint. See opinion appearing in 273 N.C. 314, 159 S.E. 2d 857, for a more complete statement of facts.

Following the certifying of the Supreme Court opinion, plaintiff, pursuant to G.S. 1-131, moved to amend her complaint and Judge Gambill allowed the motion. Defendant appeals from the order allowing the amendment and also, in this Court, demurs ore tenus for failure of the complaint to state a cause of action.

Jordan, Wright, Nichols, Caff rey & Hill and McElwee & Hall by Edward L. Murrelle for plaintiff appellee.

John H. Small; Sanders, Walker & London and Moore & Rousseau for defendant appellant.

Britt, J.

Defendant’s appeal to this Court is premature and, ex mero motu, is dismissed on authority of Morris v. Cleve, 194 N.C. 202, 139 S.E. 230, where on almost identical procedural facts the Supreme Court held: “The appeal must be dismissed as premature, since the proper procedure was to note an exception and appeal from the final judgment, if adverse to the defendants. [Citations].”

Defendant’s demurrer ore terms filed in this Court is dismissed without prejudice to the defendant.

Appeal dismissed.

Brocic and ParKer, JJ., concur.