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  "name_abbreviation": "Metcalf v. Palmer",
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  "casebody": {
    "judges": [
      "Chief Judge MORRIS and Judge WELLS concur."
    ],
    "parties": [
      "MIKE METCALF, TERRY METCALF, BILLY METCALF and MARGIE METCALF, W. J. TEAGUE and wife, LORETTA TEAGUE and PAUL M. AIKEN, SR., and wife, VERNEDA AIKEN v. W. C. PALMER and wife, HAZEL H. PALMER, and CHARLES O. COFFEY BUILDERS, INC., and B. A. BROOKS"
    ],
    "opinions": [
      {
        "text": "PARKER, Judge.\nDefendants have attempted to appeal from an order entered pursuant to G.S. 1A-1, Rule 60(b)(1), setting aside a judgment which had dismissed plaintiffs\u2019 action with prejudice for failure of plaintiffs\u2019 counsel to appear when the case was called for trial. The order appealed from is interlocutory. It does not affect any substantial right of defendants which cannot be protected by timely appeal from the trial court\u2019s ultimate disposition of the entire controversy on the merits. Its only effect is to require defendants to face a trial on the merits, just as does an adverse ruling on a Rule 12(b)(6) motion, which \u201cis in most cases, an interlocutory order from which no direct appeal may be taken.\u201d State v. School, 299 N.C. 351, 355, 261 S.E. 2d 908, 911 (1980); accord, Auction Co. v. Myers, 40 N.C. App. 570, 253 S.E. 2d 362 (1979). The right to avoid one trial on the disputed issues is not normally a substantial right that would allow an interlocutory appeal. See, 57 N.C.L.R. 907.\nIn Waters v. Personnel, Inc., 294 N.C. 200, 240 S.E. 2d 338 (1978), defendant appealed from an order of the trial court setting aside, because of procedural irregularity, a summary judgment which had been granted to the defendant. This Court entertained the appeal and reversed. Waters v. Personnel, Inc., 32 N.C. App. 548, 233 S.E. 2d 76 (1977). The Supreme Court granted plaintiff\u2019s petition for discretionary review and in turn reversed the decision of this Court, holding that this Court erred in not dismissing defendant\u2019s appeal sua sponte. In the opinion of the Supreme Court, written for the Court by Exum, J., the Court said:\nGeneral Statutes 1-277 and 7A-27 in effect provide \u201cthat no appeal lies to an appellate court from an interlocutory order or ruling of the trial judge unless such ruling or order deprives the appellant of a substantial right which he would lose if the ruling or order is not reviewed before final judgment.\u201d Consumers Power v. Power Co., 285 N.C. 434, 437, 206 S.E. 2d 178, 181 (1974); accord, Funderburk v. Justice, 25 N.C. App. 655, 214 S.E. 2d 310 (1975). An order is interlocutory \u201cif it does not determine the issues but directs some further proceeding preliminary to final decree.\u201d Greene v. Laboratories, Inc., 254 N.C. 680, 693, 120 S.E. 2d 82, 91 (1961). The reason for these rules is to prevent fragmentary, premature and un-necesary appeals by permitting the trial divisions to have done with a case fully and finally before it is presented to the appellate division. \u201cAppellate procedure is designed to eliminate the unnecessary delay and expense of repeated fragmentary appeals, and to present the whole case for determination in a single appeal from the final judgment.\u201d Raleigh v. Edwards, 234 N.C. 528, 529, 67 S.E. 2d 669, 671 (1951).\n294 N.C. at 207-08, 240 S.E. 2d at 343.\nIn the present case the parties have not raised the question of appealability. However, \u201c[w]here an appealing party has no right to appeal, an appellate court should on its own motion dismiss the appeal even though the question of appealability has not been raised by the parties themselves.\u201d State v. School, supra, at 360, 261 S.E. 2d at 914.\nWe recognize that our Supreme Court and this Court have historically entertained appeals from orders setting aside default judgments even though such orders are clearly interlocutory and only questionably may be considered as affecting a substantial right. See, Davis v. Mitchell,. 46 N.C. App. 272, 265 S.E. 2d 248 (Opinion filed 15 April 1980), and cases cited therein. We acknowledge that our holding in the present case is not altogether logically consistent with that practice. That practice, however, as an English Court once observed with reference to another doctrine, \u201cis grown revered by age, and it is not now to be broken in upon,\u201d Jee v. Audley, 1 Cox 324, 325, 29 Eng. Rep. 1186, 1187 (1787), and we have been reluctant to do so absent an express direction from our Supreme Court. See Davis v. Mitchell, supra. However, in light of what we perceive to be the clear signals transmitted by State v. School, supra; and Waters v. Personnel, Inc., supra, we do not think the practice should be extended to permit immediate appeal in the present case.\nAppeal dismissed.\nChief Judge MORRIS and Judge WELLS concur.",
        "type": "majority",
        "author": "PARKER, Judge."
      }
    ],
    "attorneys": [
      "Hamrick and Hamrick by J. Nat Hamrick for plaintiff appellees.",
      "Wilson, Palmer & Cannon by Bruce L. Cannon for defendant appellants."
    ],
    "corrections": "",
    "head_matter": "MIKE METCALF, TERRY METCALF, BILLY METCALF and MARGIE METCALF, W. J. TEAGUE and wife, LORETTA TEAGUE and PAUL M. AIKEN, SR., and wife, VERNEDA AIKEN v. W. C. PALMER and wife, HAZEL H. PALMER, and CHARLES O. COFFEY BUILDERS, INC., and B. A. BROOKS\nNo. 7925SC991\n(Filed 6 May 1980)\nAppeal and Error \u00a7 6.2\u2014 order setting aside judgment \u2014 appeal premature\nThe trial court\u2019s order entered pursuant to Rule 60(b)(1) setting aside a judgment which had dismissed plaintiff\u2019s action with prejudice for failure of plaintiffs\u2019 counsel to appear when the case was called for trial was interlocutory, and defendants\u2019 appeal therefrom was premature.\nAPPEAL by defendants from Hairston, Judge. Order entered 5 June 1979 in Superior Court, CALDWELL County. Heard in the Court of Appeals 17 April 1980.\nPlaintiffs commenced this action on 5 June 1978 by filing complaint in which they seek damages for breach of contract. Defendants filed answer denying material allegations in the complaint. The case was placed on the calendar for trial at the regular 12 February 1979 Session of Superior Court in Caldwell County. Upon call of the case on the morning of 13 February 1979, plaintiffs\u2019 counsel failed to appear, and Judge Kenneth A. Griffin, the Judge Presiding, entered an order dismissing the action with prejudice.\nOn 23 February 1979 plaintiffs filed a motion to set aside the judgment dismissing the action. This motion was heard before Judge Peter W. Hairston, Judge Presiding at the 4 June 1979 Session of Superior Court in Caldwell County. On 5 June 1979 Judge Hairston entered an order finding that on Monday, 12 February 1979, the plaintiffs\u2019 attorney had called the clerk\u2019s office and asked to be given one day\u2019s notice before the case was tried, that on Tuesday, 13 February 1979, the attorney\u2019s client was in court but the attorney was not present, and that to dismiss this case would be to punish the client for neglect of the counsel. The court also found that under the circumstances counsel\u2019s neglect merited relief under G.S. 1A-1, Rule 60(b)(1). In accord with these findings, Judge Hairston ordered that the judgment dismissing the action with prejudice be set aside and that the case be returned to the regular calendar. From this order, defendants appealed.\nHamrick and Hamrick by J. Nat Hamrick for plaintiff appellees.\nWilson, Palmer & Cannon by Bruce L. Cannon for defendant appellants."
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