Mills v Stallings, 162 NC App 180 (03-197) 01/06/2004

    Appeal by Plaintiff from Order entered 2 August 2002 by Judge Jerry F. Waddell in District Court, Craven County. Heard in the Court of Appeals 18 November 2003.

    William F. Ward, III, for the Plaintiff.

    Donald G. Lawrence, for the Defendant.

    WYNN, Judge.

    By this appeal, Plaintiff argues the district court erred by setting aside a small claims default judgment favorable to her for insufficient service of process. Defendant cross appeals and argues the district court should have set aside the default judgment not for defective service, but rather, because Defendant established (I) excusable neglect, (II) substantial misrepresentation by the Plaintiff, and (III) lack of jurisdiction. We, however, dismiss this appeal as interlocutory.
    This case arose from a 22 June 2001 transaction between Plaintiff, Michaelynn Mills and Defendant, James M. Stallings, Jr., in which Ms. Mills purchased a used, Saturn automobile fromExperience Auto Brokers, a sole proprietorship owned by Mr. Stallings. Prior to her purchase, Ms. Mills contends a sales person assured her that the Saturn's engine was “in perfect running order.” Apparently, it wasn't; the Saturn's engine leaked oil profusely and ultimately stopped working completely.
    Hence, on 15 April 2002, Ms. Mills filed a claim against Mr. Stallings in small claims court requesting relief in the amount of $4,000.00, plus treble damages and attorney's fees. The Craven County Sheriff Deputy attempted to effect service on Mr. Stallings by delivering a summons to Experienced Auto Brokers at 238 East Main Street, Havelock, North Carolina. Harold Frank Craig, general manager of Mr. Stallings' used car dealership, signed and accepted the summons, but apparently failed to deliver or even notify Mr. Stallings of the summons.
    Accordingly, Mr. Stallings failed to appear or defend himself in any way. On 7 May 2002, Magistrate Judge Lamar Sledge entered a default judgment against Mr. Stallings awarding Ms. Mills $500.00 in attorney's fees and $3,500.00 in damages, which he trebled to $10,500.00 because he found Mr. Stallings's actions to be unfair, deceptive and fraudulent, in violation of North Carolina law.
    More than two months later, Mr. Stallings filed a motion to set aside the judgment pursuant to G.S. 1A-1, Rule 60(b). From the trial court's order setting aside that judgment, Ms. Mills appeals to this Court.
    We, however, do not reach the merits of this appeal because “[i]t is well established in this jurisdiction that if an appealingparty has no right of appeal, an appellate court on its own motion should dismiss the appeal.” Bailey v. Gooding, 301 N.C. 205, 208, 270 S.E.2d 431, 433 (1980) citing Dickey v. Herbin, 250 N.C. 321, 108 S.E.2d 632 (1959); Rogers v. Brantley, 244 N.C. 744, 94 S.E.2d 896 (1956). The Supreme Court of this State has long held that an order setting aside a default judgment pursuant to G.S. 1A-1, Rule 60(b) is interlocutory and not appealable. Bailey, at 209 (“the order. . .setting aside the default judgment is interlocutory; it does not finally dispose of the case and requires further action by the trial court”); see also Gibson v. Mena, 144 N.C. App. 125, 127, 548 S.E.2d 745, 746 (2001); Shaw v. Pedersen, 53 N.C. App. 796, 798, 281 S.E.2d 700, 701 (1981).
    In the case sub judice, as in Bailey, the parties appeal a district court's order setting aside a default judgment entered in favor of Ms. Mills. Since such an appeal is interlocutory, we next consider whether the appeal affects a substantial right to appellant's detriment. Bailey, at 209, quoting Veazey v. Durham, 231 N.C. 353, 362, 57 S.E.2d 377, 381 (1950) (“Because the order is interlocutory we will not review it unless it 'affects some substantial right claimed by appellant and will work an injury to him if not corrected before an appeal from the final judgment.'”)
    Our review shows that no substantial right of either party would be compromised by our refusal to prematurely review their controversy. Indeed, Ms. Mills does not contend that the statute of limitations has run on the filing of her claim which would prevent her from curing any jurisdictional defects in the serviceof her Complaint. In Bailey, our Supreme Court discussed the limitation on appellate review of interlocutory appeals to those affecting substantial rights by noting: “These rules are designed to prevent fragmentary and premature appeals that unnecessarily delay the administration of justice and to ensure that the trial divisions fully and finally dispose of the case before an appeal can be heard.” 301 N.C. at 209. Accordingly, we must dismiss this appeal as interlocutory.
    Dismissed.
    Judges TIMMONS-GOODSON and McCULLOUGH concur.
    Report per Rule 30(e).

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