Beach v. Felton, 27 N.C. App. 334 (1975)

Nov. 5, 1975 · North Carolina Court of Appeals · No. 7524SC546

27 N.C. App. 334

BEACH AND ADAMS BUILDERS, INC. v. VERNON S. FELTON and wife, MARIAN S. FELTON; WATAUGA SAVINGS AND LOAN ASSOCIATION; and C. BANKS FINGER, TRUSTEE for WATAUGA SAVINGS AND LOAN ASSOCIATION

No. 7524SC546

(Filed 5 November 1975)

Rules of Civil Procedure § 54 — .judgment adjudicating rights of fewer than all parties — premature appeal

Summary judgment dismissing the action as to two defendants adjudicated the rights and liabilities of fewer than all the parties, contained no determination by the trial judge that there was no just reason for delay, and therefore was not a final judgment and not appealable. G.S. 1-1, Rule 54(b).

Appeal by plaintiff from Martin, Judge. Judgment entered 13 March 1975 in Superior Court, Watauga County. Heard in the Court of Appeals 16 October 1975.

In this action plaintiff seeks (1) to recover judgment against defendants Felton and wife in the amount of $21,989,.78 as balance due by contract under which plaintiff built a residence for the Feltons and (2) to have plaintiff’s claim of lien against the Felton’s property declared superior to a recorded deed of trust executed by the Feltons to defendant Finger as trustee for Watauga Savings and Loan Association. Defendants Watauga Savings and Loan Association and Finger, trustee, moved for summary judgment dismissing this action as to them. The court allowed the motion and plaintiff appealed.

Charlie R. Brown for plaintiff appellant.

C. Bcmks Finger and Donald M. Watson, Jr. for defendant appellees.

PARKER, Judge.

The summary judgment from which plaintiff attempts to appeal does not adjudicate the rights and liabilities of all the parties. It contains no determination by the trial judge that “there is no just reason for delay.” Therefore, this is not a final judgment and is not presently “subject to review either by appeal or otherwise.” G.S. 1A-1, Rule 54 (b) ; Leasing, Inc. v. Dan-Cleve Corp., 25 N.C. App. 18, 212 S.E. 2d 41 (1975), cert. denied, 288 N.C. 241 (1975) ; Arnold v. Howard, 24 N.C. App. 255, 210 S.E. 2d 492 (1974).

Appeal dismissed.

Judges Morris and Martin concur.