O'Neill v. Southern National Bank of North Carolina

We first consider the Bank's purported appeal based on an exception to the 4 January 1978 Order denying the Bank's Rule 12(b)(6) motion to dismiss plaintiff's complaint for failure to state a claim upon which relief can be granted. An Order denying a Rule 12(b)(6) motion is interlocutory and clearly not appealable. G.S. § 1-277; Smith v. State, 289 N.C. 303, 222 S.E.2d 412 (1976); North Carolina Consumers Power, Inc. v. Duke Power Co., 285 N.C. 434, 206 S.E.2d 178 (1974); Acorn v. Jones Knitting Corp., 12 N.C. App. 266, 182 S.E.2d 862 (1971). Furthermore, the record discloses that the defendant did not give notice of appeal from the Order entered 4 January 1978 within ten days as required by G.S. § 1-279(c) and Rule 3(c) of the Rules of Appellate Procedure. The provisions of G.S. § 1-279 are jurisdictional, and unless they are complied with the appellate court acquires no jurisdiction of an appeal and must dismiss it. Teague v. Teague, 266 N.C. 320, 146 S.E.2d 87 (1966); Giannitrapani v. Duke University, 30 N.C. App. 667, 228 S.E.2d 46 (1976); Brooks v. Matthews, 29 N.C. App. 614, 225 S.E.2d 159 (1976). See also Rule 1(b) of the Rules of Appellate Procedure. The time for taking an appeal may not be enlarged by the appellate courts. Giannitrapani v. Duke University, supra; Rule 27(c) of the Rules of Appellate Procedure. Nor did the filing by defendant of its motion, hereinafter discussed, on 6 January 1978 ""[p]ursuant to [Rules] 60(b), 52(a), and 52(b)"" toll the running of time within which to file notice of appeal under G.S. § 1-279(c) or Rule 3(c) of the Rules of Appellate Procedure, since motions pursuant to these rules apply only to final judgments and orders and clearly have no application to interlocutory orders such as the Order entered 4 January 1978 denying the Bank's motion to dismiss. See Sherwood v. Sherwood, 29 N.C. App. 112, 223 S.E.2d 509 (1976).