Clark v. Clark, 42 N.C. App. 84 (1979)

June 19, 1979 · North Carolina Court of Appeals · No. 7818DC864

42 N.C. App. 84

PEYTON CLARK v. MURRAY M. CLARK, JR. and MURRAY M. CLARK, SR.

No. 7818DC864

(Filed 19 June 1979)

Appeal and Error § 6.2— motion to strike amended complaint — appeal from denial interlocutory

Defendant’s appeal from the trial court’s entry of an order denying his motion to strike plaintiffs amended complaint is interlocutory and is dismissed.

APPEAL by defendant from Alexander (Elreta MJ, Judge. Order entered 18 April 1978 in District Court, GUILFORD County. Heard in the Court of Appeals 28 May 1979.

The plaintiff, Peyton Clark, brought this action against the defendant, Murray M. Clark, Jr., seeking a divorce from bed and board, a money judgment and a writ of possession of the marital home. After a hearing, the trial court granted the plaintiff a divorce from bed and board but retained the cause for. further hearings with regard to the other issues raised. Several months later, the plaintiff filed a motion for leave to amend her complaint so as to, among other things, bring in the defendant, Murray M. Clark, Sr., as an additional party defendant. An order was entered granting the plaintiff’s motion and an amended complaint was filed in accordance with that order. The defendant, Murray M. Clark, Jr., then filed a motion to strike the amended complaint on the ground that he had no notice of the hearing on the plaintiff’s motion for leave to amend her complaint and no opportunity to be heard on that motion. The trial court entered an order denying the defendant’s motion.

From the entry of that order denying his motion to strike the plaintiff’s amended complaint, the defendant, Murray M. Clark, Jr., appealed.

Younce, Wall & Chastain, P.A., by Percy L. Wall, for plaintiff appellee.

Reginald L. Yates for defendant appellant.

MITCHELL, Judge.

The effect of both G.S. 1-277 and G.S. 7A-27(d) is to provide that no appeal will lie to an appellate court from an interlocutory order or ruling of a trial court unless such order or ruling deprives the appellant of a substantial right which he will lose if the order or ruling is not reviewed before final judgment. Waters v. Personnel, Inc., 294 N.C. 200, 240 S.E. 2d 338 (1978); Wood v. City of Fayetteville, 35 N.C. App. 738, 242 S.E. 2d 640, rev. denied, 295 N.C. 264, 245 S.E. 2d 781 (1978). The order of the trial court denying the motion of the defendant, Murray M. Clark, Jr., does not determine or discontinue the action or affect a substantial right. See Trust Co. v. Motors, Inc., 13 N.C. App. 632, 186 S.E. 2d 675 (1972). The assignments and contentions the defendant, Murray M. Clark, Jr., seeks to present here by interlocutory appeal will not be lost if the order from which he has appealed is not reviewed before an appeal from final judgment. The trial court has rendered no order or judgment from which an interlocutory appeal may properly be taken and we order the

Appeal dismissed.

Judges PARKER and MARTIN (Harry C.) concur.