E. L. Morrison Lumber Co. v. Vance Widenhouse Construction, Inc., 75 N.C. App. 190 (1985)

June 4, 1985 · North Carolina Court of Appeals · No. 8419SC1125
75 N.C. App. 190
E. L. MORRISON LUMBER CO., INC., Plaintiff v. VANCE WIDENHOUSE CONSTRUCTION, INC., and AETNA CASUALTY AND SURETY CO., Defendant; and C K FEDERAL SAVINGS & LOAN ASSOCIATION, Defendant and Third Party Plaintiff v. STEWART TITLE GUARANTY COMPANY and STEWART TITLE OF SALISBURY, INC., Third Party Defendant

E. L. MORRISON LUMBER CO., INC., Plaintiff v. VANCE WIDENHOUSE CONSTRUCTION, INC., and AETNA CASUALTY AND SURETY CO., Defendant, and C K FEDERAL SAVINGS & LOAN ASSOCIATION, Defendant and Third Party Plaintiff v. STEWART TITLE GUARANTY COMPANY and STEWART TITLE OF SALISBURY, INC., Third Party Defendant

No. 8419SC1125

(Filed 4 June 1985)

Appeal and Error § 9— appeal on third-party issue — voluntary dismissal of original complaint — appeal dismissed

An appeal by C K Federal Savings and Loan from summary judgment for the third-party defendant was dismissed where the original plaintiff took a voluntary dismissal of its complaint against C K Federal Savings and Loan.

Appeal by third-party plaintiff from Hairston, Judge. Judgment entered 7 August 1984 in Superior Court, CABARRUS County. Heard in the Court of Appeals 14 May 1985.

This is a civil action wherein E. L. Morrison Lumber Co. sued Vance Widenhouse Construction, Inc., Aetna Casualty and Surety Co. and C K Federal Savings & Loan Association to recover for labor and materials allegedly furnished for improvements upon property prior to the issuance of a deed of trust on the property. In response to this suit C K Federal Savings and Loan filed a third-party complaint against Stewart Title Guaranty Company and Stewart Title of Salisbury, Inc., seeking to “be indemnified by said third-party defendants with respect to any amount which the plaintiff Morrison may recover of the defendant C K Federal in this action, together with all costs and expenses incurred by C K Federal in its defense. . . .” The third-party defendants answered and conducted discovery. Following discovery, the third-party defendants moved for summary judgment. Summary judgment was granted on 7 August 1984. From this Order C K Federal Savings and Loan appealed. On 12 September 1984, E. L. Morrison Lumber Co. took a voluntary dismissal of its action against Vance Widenhouse Construction, Inc., C K Federal Savings & Loan Association and Aetna Casualty and Surety Co.

*191 Hartsell, Hartsell & Mills, by Fletcher L. Hartsell, Jr., for third-party plaintiff appellant.

Hancock & Hundley, by R. Darrell Hancock and George R. Hundley, for third-party defendant appellee.

ARNOLD, Judge.

“When, pending an appeal . . ., a development occurs, by reason of which the questions originally in controversy between the parties are no longer at issue, the appeal will be dismissed for the reason that this Court will not entertain or proceed with a cause merely to determine abstract propositions of law or to determine which party should rightly have won in the lower court.” Parent-Teacher Assoc. v. Bd. of Education, 275 N.C. 675, 679, 170 S.E. 2d 473, 476 (1969). In the case sub judice, when the plaintiff took a voluntary dismissal of its complaint against C K Federal Savings and Loan, the Savings and Loan attempt to obtain indemnification from the third-party became moot, thus, necessitating the dismissal of this appeal.

Appeal dismissed.

Judges Martin and Parker concur.