Golden v. Golden

258 S.E.2d 809 (1979)

43 N.C. App. 393

Carl D. GOLDEN, Jr. v. Vera E. GOLDEN.

No. 7825DC1129.

Court of Appeals of North Carolina.

October 16, 1979.

*810 Rudisill & Brackett by J. Richardson Rudisill, Jr., Hickory, for plaintiff-appellant.

Hovey, Carter & Robbins by Sherwood J. Carter, Jr., Hickory, for defendant-appellee.

ERWIN, Judge.

We find it was proper for Judge Tate to consider plaintiff's motion to dismiss pursuant to Rule 12(b)(6) of the Rules of Civil Procedure as one for summary judgment and to consider matters off the face of the record after giving the parties reasonable opportunity to present all material pertinent to the disposition of the case by summary judgment. Smith v. Smith, 17 N.C.App. 416, 194 S.E.2d 568 (1973); G.S. 1A-1, Rule 12(b), of the Rules of Civil Procedure.

Plaintiff contends that denial of the motion for summary judgment is immediately appealable, because it affects a substantial right, namely, plaintiff's ability to litigate further the question of whether the order entered by Judge Beach in 1976 terminated forever plaintiff's obligation to pay alimony to defendant.

Ordinarily the denial of a motion for summary judgment is not immediately appealable, because it affects no substantial right, the movant being allowed to preserve his exception to the denial of the motion for consideration on appeal from the final judgment. Waters v. Personnel, Inc., 294 N.C. 200, 240 S.E.2d 338 (1978); Motyka v. Nappier, 9 N.C.App. 579, 176 S.E.2d 858 (1970). The denial of plaintiff's motion for summary judgment can be reviewed on appeal from the final judgment without substantial harm to plaintiff.

The appeal is

Dismissed.

VAUGHN and HILL, JJ., concur.