Wachovia Bank & Trust Co., NA v. Smith , 24 N.C. App. 133 ( 1974 )

210 S.E.2d 212 (1974) 24 N.C. App. 133

WACHOVIA BANK & TRUST COMPANY, N.A.
v.
Charlie SMITH, Jr., and wife, Betty W. Smith.

No. 743SC659.

Court of Appeals of North Carolina.

December 4, 1974. Certiorari Denied February 4, 1975.

Dunn & Dunn by Raymond E. Dunn, New Bern, for plaintiff appellee.

Louis F. Foy, Jr., Trenton, for defendant appellants.

Atty. Gen. James H. Carson, Jr., by Asst. Atty. Gen. Charles R. Hassell, Jr., Raleigh, as amicus curiae.

Certiorari Denied by Supreme Court February 4, 1975.

HEDRICK, Judge.

Plaintiff filed a motion in this court to dismiss the defendants' appeal on the grounds that it was from an interlocutory order not affecting a substantial right. Defendants filed answer to the motion contending that the appeal was authorized by G.S. § 1-277, which in pertinent part provides:

"(a) An appeal may be taken from every judicial order or determination of a judge of a superior or district court, upon or involving a matter of law or legal inference, whether made in or out of session, which affects a substantial right claimed in any action or proceeding; or which in effect determines the action, and prevents a judgment from which an appeal might be taken; or discontinues the action, or grants or refuses a new trial."

The substantial right claimed by the defendants is that they justifiably revoked their acceptance of the mobile home in accordance with the provisions of G.S. § 25— 2-608 and that pursuant to G.S. § 25-2-711(3) they have a security interest in the mobile home. They further contend that they are not required to file a replevy bond in order to hold the property pending a trial.

In entering the order of seizure in the claim and delivery proceeding, the clerk of superior court did not and could not determine whether the defendants justifiably revoked their acceptance of the mobile home or whether the defendants retained a security interest therein. Likewise, G.S. § 1—474 only gives the judge of the superior court the authority to review the action of the clerk in issuing or refusing to issue the order of seizure. The questions raised by the defendants can be decided only when the case is heard on its merits. No substantial right of the defendants has yet been judicially determined. Furthermore, whatever interest the defendants have in the mobile home is amply protected by plaintiff's undertaking filed in the claim and delivery proceeding pursuant to G.S. § 1-475.

The appeal is

Dismissed.

BRITT and MARTIN, JJ., concur.