La Duke v. E. W. Wylie Co.

Decision Date08 September 1950
Docket NumberNo. 7211,7211
Citation77 N.D. 592,44 N.W.2d 204
PartiesLA DUKE v. E. W. WYLIE CO. et al.
CourtNorth Dakota Supreme Court

Syllabus by the Court.

1. An order which strikes from an answer an affirmative defense not provable under the remaining allegations of the answer, is an appealable order.

2. A defense which challenges the plaintiff's right to maintain an action on the ground that the plaintiff is not the real party in interest must be specially and affirmatively pleaded.

3. For reasons stated in the opinion it is held that the determination of the merits in this case is governed by our decision in the case of Gimble v. Monrana Dakota Utilities Co., a corporation, N.D., 44 N.W.2d 198.

Sullivan, Kelsch & Sullivan, Mandan, (Albert R. Scanlon, Mandan, on oral argument), for defendants and appellants.

Murray & Murray, Bismarck, for plaintiff and respondent.

MORRIS, Judge.

The defendant appeals from an order of the District Court striking that portion of the defendants' answer which purports to set out an affirmative defense. The plaintiff and respondent has made a motion in this court for the dismissal of the appeal upon the grounds that the challenged order is not appealable.

The plaintiff alleges in his complaint that on or about the 21st day of April, 1949, while driving a motor vehicle he was personally injured in a highway collision with a truck which was negligently driven by the defendant Rolly Hull who was operating the truck as an employee and servant of the defendant, E. W. Wylie Company.

The defendants' answer among other things admits that at the time of the accident Hull was operating the truck as an employee of the E. W. Wylie Company and alleges that the plaintiff was an employee of Consolidated Freightways Incorporated, a foreign corporation, and was an insured and compensable employee and came within the provisions of the Workmen's Compensation Laws of the State of North Dakota. That portion of the answer ordered stricken out alleges that on the 29th day of April, 1949, the plaintiff elected to file a claim with the Workmen's Compensation Bureau which was approved and payments made and accepted to compensate the plaintiff for loss of time and earnings and for hospital, medical and drug expenses. Finally it is alleged that the plaintiff has no right or authority in law to prosecute the action personally and as trustee for the Workmen's Compensation Bureau, that he is not the real party in interest and has no legal capacity to sue or maintain the action.

The plaintiff moved the trial court to strike from the answer that portion thereof pleading the defense above outlined upon the ground that the action was commenced after Chapter 355, SLND 1949, became effective and that pursuant to that act the plaintiff was entitled to maintain this action individually and as trustee for the Workmen's Compensation Bureau. The court granted plaintiff's motion and the defendant's appeal. The plaintiff challenges the appealability of the trial court's order.

Interlocutory orders are appealable only when made so by statute. Sec. 28-2702, RCND 1943, specifies what orders are reviewable in the Supreme Court. Among them being, 'An order which involves the merits of an action or some part thereof'. In Ferguson v. Jensen, N.D., 38 N.W.2d 560, we held that an order denying plaintiff's motion to strike out certain paragraphs of a defendant's counterclaim is not appealable under this provision as it does not involve merits of the action or some part thereof. This court has not passed squarely upon the question as to whether or not an order striking out a material portion of an answer may be reviewed in the Supreme Court. But see Stimson v. Stimson, 30 N.D. 78, 152 N.W. 132; Bergen Township v. Nelson County, 33 N.D. 247, 156 N.W. 559. That is the question here and our examination of authorities dealing with similar statutes in other states leads us to the conclusion that the question is not susceptible of a categorical answer that would apply in all cases. The appealability of the order depends upon the nature of the material stricken. If it involves the merits of the action or a part thereof, it falls within our statutory provision, but a rule of thumb is not always available to determine when an order involves the merits. It is clear that the merits are not involved when the order strikes out irrelevant or redundant matter. Upon the other hand it is equally clear that if the order strikes an affirmative defense not provable under the remaining allegations of the answer it is appealable. Starbuck v. Dunklee, 10 Minn. 168, (Gil. 136), 88 Am.Dec. 68; Kingsley v. Gilman, 12 Minn. 515, (Gil. 425); Vermilye v. Vermilye, 32 Minn. 499, 18 N.W. 832, 21 N.W. 736; National Albany Exchange Bank v. Cargill, 39 Minn. 477, 40 N.W. 570; Floody v. Chicago, St. P., M. & O. Ry. Co., 104 Minn. 132, 116 N.W. 111; Lowe v. Nixon, 170 Minn. 391, 212 N.W. 896; Miller v. Whistler, 153 Kan. 329, 110 P.2d 744; In re Reed's Estate, 157 Kan. 602, 142 P.2d 824; Funkhouser Equipment Company v. Carroll, 161 Kan. 428, 168 P.2d 918; Dorman v. Credit Reference and Reporting Company, 213 Iowa 1016, 241 N.W. 436; Carpenter v. Reynolds, 58 Wis. 666, 17 N.W. 300; Adamson v. Raymer, 94 Wis. 243, 68 N.W. 1000. In Funkhouser Equipment Company v. Carroll, supra [161 Kan. 428, 168 P.2d 921], it is said: 'The action of the trial court has the effect of depriving the defendants of a defense pleaded on the merits....

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9 cases
  • Shermoen v. Lindsay
    • United States
    • United States State Supreme Court of North Dakota
    • 30 Diciembre 1968
    ...the remaining allegations of the Complaint and yet 'involves the merits of an action or some part thereof.' See also La Duke v. E. W. Wylie Co., 77 N.D. 592, 44 N.W.2d 204. The issues raised by the appeal will be The specifications of error as the same refer to the two separate orders of th......
  • Estate of Stuckle, Matter of, 870375
    • United States
    • United States State Supreme Court of North Dakota
    • 28 Junio 1988
    ...to amend an answer, Hermes v. Markham, 78 N.D. 268, 49 N.W.2d 238 (1951), or striking an affirmative defense, La Duke v. E.W. Wylie Co., 77 N.D. 592, 44 N.W.2d 204 (1950); but not from others, such as one allowing an amended complaint, Holobuck v. Schaffner, 30 N.D. 344, 152 N.W. 660 (1915)......
  • Hermes v. Markham, 7262
    • United States
    • United States State Supreme Court of North Dakota
    • 8 Septiembre 1951
    ...denying it is appealable, Bolton v. Donavan, 9 N.D. 575, 84 N.W. 357; Stimson v. Stimson, 30 N.D. 78, 152 N.W. 132; La Duke v. E. W. Wylie Co., N.D., 44 N.W.2d 204. As a general rule amendments to pleadings are allowed in the interests of justice with great liberality. That is essential in ......
  • Granger v. Deaconess Hospital of Grand Forks, 8185
    • United States
    • United States State Supreme Court of North Dakota
    • 23 Noviembre 1965
    ...appealable because it strikes an affirmative defense not provable under the remaining allegations of the answer. See La Duke v. E. W. Wylie Co., 77 N.D. 592, 44 N.W.2d 204. An order which strikes from an answer an affirmative defense not provable under the remaining allegations of the answe......
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