Opinion
19304
November 1, 1971.
Messrs. F. Barron Grier, III, of Nelson, Mullins, Grier Scarborough, and Thomas H. Curlee, Jr., of Lourie Draine, Columbia, for Appellant, cite: As to the Trial Judge's erring in holding that there existed genuine issues as to material facts created by the pleadings, and further, in not holding that the plaintiff's own negligence or willfulness was a proximate cause of his damages: 200 So.2d 481; 129 S.C. 226, 123 S.E. 845; 119 Col. 518, 205 P.2d 225; 179 S.E.2d 609. As to the Trial Judge's erring in finding that the Defendant had defeated its own Motion for Summary Judgment by alleging contributory negligence on the part of the plaintiff and in finding and concluding that the doctrine of sudden emergency was applicable to the facts of this case: 246 S.C. 346, 143 S.E.2d 614; 254 S.C. 120, 173 S.E.2d 789; 159 S.C. 506, 157 S.E. 830; 136 S.C. 453. 134 S.E. 506; 196 S.C. 433, 13 S.E.2d 486; Circuit Court Rule 44.
T. Patton Adams, Esq., of Graydon Suber, Columbia, for Respondent, cites: As to an Order denying a Motion for Summary Judgment being interlocutory in nature and therefore not appealable: Federal Practice and Procedure, Rules Edition, Barron and Holtzoff (1958) Sec. 1242; 234 S.C. 380, 108 S.E.2d 547; Circuit Court Rule 44; South Carolina Code of Laws, 1962, Sec. 15-123; Federal Practice and Procedure, Rules Edition, Barron and Holtzoff (1958) Sec. 1232.1; 242 F.2d 575; 191 F.2d 334, 89 U.S. App. D.C. 116. As to material issues of fact remaining controverted and the order of the Trial Judge denying the motion being proper: 179 S.E.2d 609; Circuit Court Rule 44, Subsection (c). As to the Trial Judge's properly finding that the Defendant had defeated its own Motion for Summary Judgment by alleging contributory negligence on the part of the Plaintiff and in finding and concluding that the doctrine of sudden emergency was applicable to the facts of this case: 246 S.C. 346, 143 S.E.2d 614.
Messrs. R. Bruce Shaw, of Nelson, Mullins, Grier Scarborough, and Thomas H. Curlee, Jr., of Lourie Draine, Columbia, for Appellant, in Reply, cite: As to Order denying Motion for Summary Judgment being appealable in that the Appeal involves issues of law and involves the merits of the case: Sec. 15-123 (1) of the South Carolina Code of Laws (1962); 11 S.C. 122; 237 S.C. 655, 118 S.E.2d 696; 234 S.C. 380, 108 S.E.2d 547; 244 S.C. 70, 135 S.E.2d 372; 34 S.C. 357, 13 S.E. 628; 216 S.C. 500, 510; 102 S.C. 442, 86 S.E. 817; 242 N.Y. 346, 152 N.E. 110.
November 1, 1971.
This is an appeal from an order denying a motion for summary judgment. The motion was made pursuant to Circuit Court Rule 44, as amended. Respondent's contention that the order is not directly appealable is sustained.
An order denying a motion for summary judgment is an interlocutory decision and not directly appealable. The following from 4 Am. Jur.2d Appeal and Error, Section 104. p. 622, states the foregoing general rule and the reasons underlying it:
"However, the prevailing view seems to be that the denial of a motion for summary judgment is an interlocutory decision only and therefore not directly appealable, since such a denial is not an adjudication on the merits against the movant and he is not thereby foreclosed from the possibility of prevailing in the case when the facts are developed, * * *."
An annotation on the subject may be found in 15 A.L.R. 3d 899.
Appeal dismissed.