Kirkman v. Wilson

Court of Appeals of North Carolina
Kirkman v. Wilson, 86 N.C. App. 561 (1987)
358 S.E.2d 550; 1987 N.C. App. LEXIS 2744
Hedrick, Orr, Phillips

Kirkman v. Wilson

Opinion of the Court

PHILLIPS, Judge.

This appeal is not authorized and we dismiss it. It is from an interlocutory order denying a motion to dismiss plaintiffs’ action and a substantial right is not affected. Oestreicher v. American National Stores, Inc., 290 N.C. 118, 225 S.E. 2d 797 (1976). That the trial judge amended the order to state that it is a “final Judgment” did not change its nature, Tridyn Industries, Inc. v. American Mutual Insurance Co., 296 N.C. 486, 251 S.E. 2d 443 (1979), and make appealable what is clearly not appealable under the provisions of G.S. 1-277 and G.S. 7A-27. Fraser v. DiSanti, 75 N.C. App. 654, 331 S.E. 2d 217, disc. rev. denied, 315 N.C. 183, 337 *564S.E. 2d 856 (1985). Furthermore, in denying defendants’ motion to dismiss no determination was made that is subject to appellate review. Contrary to defendants’ impression, the trial court did not strike the defense based upon the Marketable Title Act; it merely observed that there is no precedent for defendants’ claim that their unbroken chain of record title to the land for more than 30 years rendered unenforceable plaintiffs’ claims as remainder-men under the will of A. E. Kirkman. This observation does not prevent defendants from continuing to assert the Marketable Title Act in their defense. But even if it did, other issues in the case would still remain to be tried, as the defendants pled three other defenses, any of which, from ought we know, might control the case. The amendment to the order undertaking to authorize defendants’ immediate appeal is not sanctioned by Rule 54(b), N.C. Rules of Civil Procedure —which by its terms is limited to instances where less than all the claims made in a case are finally adjudicated. Too, while Rule 54(b) makes it possible to appeal before an entire case has been adjudicated, it does not authorize the appeal of claims that have not been finally adjudicated. Though the contentions of the parties concerning the applicability of the Marketable Title Act are interesting, under the record no question concerning that Act is properly before us, and we will not anticipate such a question and determine it.

Appeal dismissed.

Chief Judge HEDRICK and Judge ORR concur.

Reference

Full Case Name
ROY L. KIRKMAN and wife, LULA B. KIRKMAN, CLINTON (NMI) KIRKMAN and wife, ANN LYVONNE KIRKMAN, and JAMES E. KIRKMAN (Unmarried) v. ADDIE WILSON (Widow), ZENO M. EVERETTE, JR. and wife, CAROL H. EVERETTE, ERNEST F. BOYD and wife, SYBIL E. BOYD, BRENDA H. MANNING, LOUIS EARL TOLER and wife, JOYCE D. TOLER, LINWOOD EARL BRAXTON and wife, EARLINE BRAXTON, ELVIRA JOHNSON (Widow), RICHARD D. JEWELL and wife, PATSY JOHNSON JEWELL, and MARIE H. WISE (Widow), Defendants ERNEST F. BOYD and wife, SYBIL E. BOYD, BRENDA H. MANNING, LOUIS EARL TOLER and wife, JOYCE D. TOLER, LINWOOD EARL BRAXTON and wife, EARLINE BRAXTON, ELVIRA JOHNSON (Widow), and RICHARD D. JEWELL and wife, PATSY JOHNSON JEWELL, Third Party v. J. L. WILSON and wife, ADDIE WILSON, CORA LEE BAILEY and husband, DENNIS BAILEY, JIMMY MORRIS and wife, JANICE MARLENE MORRIS, DORIS EVELYN SADLER and husband, CLEM M. SADLER, BRITT ANNIE WARREN and husband, JAMES W. WARREN, DORA LEE SUMRELL and husband, WILLIAM H. SUMRELL, STEPHEN KITE and wife, JULIA LAURA KITE, GUY C. FORNES and wife, LENA FRANCES FORNES, JAMES S. DIXON and wife, AMANDA DIXON, CLAUDIS DIXON and wife, ADA MAE DIXON, OFFICE OF THE CLERK OF THE SUPERIOR COURT OF CRAVEN COUNTY, NORTH CAROLINA and CRAVEN COUNTY, NORTH CAROLINA, by and through its Board of Commissioners, Third Party Defendants and DORIS EVELYN (SADLER) FORREST, DORA LEE SUMRELL and husband, WILLIAM H. SUMRELL and BRITT ANNIE WARREN, Additional Third Party v. CRAVEN COUNTY and FIREMAN'S FUND INSURANCE COMPANIES, Additional Third Party
Cited By
2 cases
Status
Published