Landreth v. Salem Properties, 75 N.C. App. 196 (1985)

June 4, 1985 · North Carolina Court of Appeals · No. 8421DC1247

75 N.C. App. 196

KEITH W. LANDRETH v. SALEM PROPERTIES, a North Carolina General Partnership; and Salem Square Owners Association, a North Carolina Non-Profit Corporation

No. 8421DC1247

(Filed 4 June 1985)

Appeal and Error § 6.2— appeal from amendment of judgment —appeal premature

An appeal from an amendment of a judgment changing the dismissal of plaintiffs claim to a judgment without prejudice was dismissed as premature.

APPEAL by defendant from James A. Harrill, Jr., Judge. Order entered 21 September 1984 in District Court, FORSYTH County. Heard in the Court of Appeals 17 May 1985.

The defendant appeals from the amendment of a judgment dismissing the plaintiff’s claim. The plaintiff filed this action on 9 July 1982 claiming damages for the diversion of water onto his property. The defendant filed an answer. The case was apparently placed on a cleanup calendar and on 15 June 1983 was dismissed with prejudice on 15 June 1983 for failure to prosecute. The plaintiff made a motion to set aside the dismissal which was denied on 12 July 1984. On 21 September 1984 the Court on its own motion amended the judgment of dismissal so that the judgment was entered without prejudice. The defendant appealed and the plaintiff cross assigned error to the judgment of dismissal entered 15 June 1983.

David Crescenzo for plaintiff appellee.

Joseph T. Carruthers for defendants appellants.

WEBB, Judge.

Although neither party has raised a question as to the ap-pealability of the Court’s order we should dismiss the appeal on our own motion if it is not appealable. Metcalfe v. Palmer, 46 N.C. App. 622, 265 S.E. 2d 484 (1980). We believe we are bound by Met-calfe to dismiss the appeal in this case. In Metcalfe this Court dismissed as premature an appeal from an order setting aside a judgment dismissing a case for the plaintiffs failure to prosecute. The only difference between that case and this one is that in this case the Court amended a judgment rather than setting it aside. We believe this is a distinction without a difference.

Appeal dismissed.

Chief Judge HEDRICK and Judge WHICHARD concur.