WALDRON BUICK COMPANY v. General Motors Corp.

110 S.E.2d 870 (1959)

251 N.C. 201

WALDRON BUICK COMPANY v. GENERAL MOTORS CORPORATION and Lee A. Folger, Inc.

No. 251.

Supreme Court of North Carolina.

November 11, 1959.

Blakeney, Alexander & Machen, Charlotte, for plaintiff Waldron Buick Company.

Lassiter, Moore & Van Allen and H. A. Berry, Jr., Charlotte, for petitioners, appellants.

Kennedy, Covington, Lobdell & Hickman, Charlotte, counsel for General Motors Corporation, as amici curiae.

Allen & Hipp, Raleigh, counsel for North Carolina Assn. of Certified Public Accountants, as amici curiae.

BOBBITT, Justice.

Only a "party aggrieved" may appeal from the superior court to the Supreme Court. G.S. § 1-271; Langley v. Gore, 242 N.C. 302, 87 S.E.2d 519. "(A) `party aggrieved' is one whose right has been directly and injuriously affected by the action of the court." McIntosh, North Carolina Practice and Procedure, § 675; Freeman v. Thompson, 216 N.C. 484, 5 S.E.2d 434. "An appeal may be taken from every judicial order or determination of a judge of a superior court, upon or involving a matter of law or legal inference, * * * which affects a substantial right claimed in any action or proceeding * * *" G.S. § 1-277; Veazey v. City of Durham, 231 N.C. 357, 57 S.E.2d 377, 382.

"There is no more effective way to procrastinate the administration of justice than that of bringing cases to an appellate court piecemeal through the medium of successive appeals from intermediate orders. The rules regulating appeals from the Superior Court to the Supreme Court are designed to forestall the useless delay inseparable from unlimited fragmentary appeals, and to enable courts to perform their real function, i.e., to administer `right and justice * * * without sale, denial, or delay.' N. C. Const., Art. I, Sec. 35." Ervin, J., in Veazey v. City of Durham, supra.

General Motors Corporations's exception to Judge Sharp's order will be for consideration in the event of an appeal by General Motors Corporation from an adverse judgment. We do not now consider whether Judge Sharp's order was erroneous. The only question now before us is whether any substantial right of Sterling Hudson and A. M. Pullen & Company is directly and injuriously affected by Judge Sharp's order.

In Yow v. Pittman, 241 N.C. 69, 84 S.E.2d 297, 298, this Court said that the deposition statute, G.S. § 8-71, notwithstanding its broad provisions, "does not contemplate the taking of deposition of a person disqualified to give evidence in the case. It confers no right to investigate or inquire into matters which the court could not investigate and inquire into in the actual trial." It was held that the defendants could not take the deposition of plaintiff's physician because, under G.S. § 8-53, he was disqualified to testify as to information he acquired in attending plaintiff in a professional capacity.

Here, under the pleadings, the contents of plaintiff's books and records are germane to the issues. Plaintiff, under court order, was required to submit its books and records to defendants "for inspection and copies"; and, pursuant to employment of A. M. Pullen & Company by counsel for General Motors Corporation, Sterling Hudson, a Certified Public Accountant and member of said firm, made an examination thereof. He thus acquired knowledge of the contents of plaintiff's books and records. A certified public accountant who has knowledge of the contents of plaintiff's books and records is not disqualified to give evidence in the case "with respect to facts and data obtained by him directly from the books and records of the plaintiff." Under Judge Sharp's order, this is all Sterling Hudson is required to do. The admissibility of his testimony, as *875 to competency and relevancy, will be passed upon in accordance with ususal practice and procedure

Appellants' petition for order quashing the subpoena duces tecum is based solely on the ground that they should not be required to disclose information and instructions given to them in confidence by counsel for General Motors Corporation. As to this, it appears that Judge Sharp granted appellants' petition. Her order specifically provides that Hudson is not required to disclose any information or instructions given him by counsel for General Motors Corporation or any studies or analyses made by him in accordance therewith; and, as we interpret the order, Hudson is not required to make such disclosure either by testimony or by disclosing the contents of any memoranda or reports.

It is noted that appellants' exceptions and assignments of error constitute a broadside challenge of Judge Sharp's order. No specific ground of objection is stated therein.

We are of opinion, and so hold, that no substantial right of appellants is directly and injuriously affected by Judge Sharp's order. Hence, their purported appeal is dismissed.

It is noted: No brief was filed in this Court in behalf of plaintiff. The only appearance in behalf of plaintiff was a motion filed by its counsel to dismiss summarily the purported appeal on the several grounds stated in the motion. This Court, pursuant to consideration in conference, denied plaintiff's said motion on October 2, 1959. Upon further consideration, we are of opinion that, for the reasons stated above, the purported appeal should be dismissed. Hence, this Court's order of October 2, 1959, is stricken.

Appeal dismissed.

PARKER, J., dissents.

HIGGINS, J., not sitting.