Reid v. Reid, 29 N.C. App. 754 (1976)

June 16, 1976 · North Carolina Court of Appeals · No. 7625DC148
29 N.C. App. 754


No. 7625DC148

(Filed 16 June 1976)

Rules of Civil Procedure § 54— judgment adjudicating fewer than all claims — appeal premature

Defendant’s appeal from a judgment adjudicating fewer than all the claims of the parties is dismissed since the trial court failed to find that there was “no just reason for delay.”

Appeal by defendant from Vernon, Judge. Judgment entered 17 November 1975 in District Court, Caldwell County. Heard in the Court of Appeals 26 May 1976.

This is a civil action wherein the plaintiff, Ted Reid, is seeking a divorce from bed and board from his wife, the defendant, Fleta Kerley Reid. In his complaint, plaintiff alleged that his wife “offered such indignities to the person of the plaintiff as to render his condition intolerable” and “constructively abandoned” him. The defendant answered denying the material allegations of the complaint. She also counterclaimed for both permanent and pendente lite alimony and an attorney’s fee, claiming that plaintiff had abandoned and deserted her.

On 16 October 1975, plaintiff moved for summary judgment on defendant’s counterclaim, alleging that defendant is not a “dependent spouse” as required by G.S. 50-16.2. After the filing of interrogatories by both parties and an affidavit of defendant, all tending to show the income and assets of the respective parties, plaintiff renewed his motion for summary judgment. On 17 November 1975, the matter came on for a hearing before Judge Vernon who granted plaintiff’s motion for summary judgment on defendant’s counterclaim. On 19 November 1975, defendant moved to sec aside summary judgment *755on the grounds that plaintiff’s sworn answers to defendant’s interrogatories regarding his income were substantially incorrect. This matter came on for hearing wherein both parties offered evidence. Following the hearing, Judge Vernon entered an order on 20 November 1975 denying defendant’s motion. Defendant appealed.

West, Groome and Baumberger by Carroll N. Tuttle for plaintiff appellee.

Randy Duncan for defendant appellant.


The judgment and order from which defendant appeals adjudicate fewer than all the claims of the parties. Since they are interlocutory and the judge below failed to find there was “no just reason for delay” in appealing the judgment, they are not now subject to review. 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, 216 S.E. 2d 910 (1975).

Appeal dismissed.

Judges Parker and Arnold concur.