Berg v. Kremers, 8442
| Decision Date | 14 December 1967 |
| Docket Number | No. 8442,8442 |
| Citation | 154 N.W.2d 911 |
| Parties | Shirley BERG and Thomas Neidlinger, Plaintiffs and Respondents, v. Rosamond KREMERS and Larry Kremers, Defendants and Appellants. Civ. |
| Court | North Dakota Supreme Court |
Syllabus by the Court
1. The right to appeal is purely statutory.
2. No appeal lies from a judgment that is interlocutory and not final.
3. When judgment of trial court did not adjudicate defendants' counterclaim and all issues raised by plaintiffs' complaint, and trial court did not make express determination that there was no just reason for delay and expressly direct entry of judgment of one or more but less than all claims, the judgment is not a final judgment but interlocutory and is not appealable. Rule 54(b), N.D.R.Civ.P.
Floyd B. Sperry, Bismarck, for defendants and appellants.
Traynor & Traynor, Devils Lake, Warner, Ratelle & Hennessy, Minneapolis, Minn., for plaintiffs and respondents.
The defendants have appealed from a judgment of partition and demand trial de novo in this court.
On the threshold of our consideration of this appeal, we are confronted with the question of whether the appeal is properly here and whether we have jurisdiction to determine it.
The action was brought for partition of a section of farmland, for an accounting of the 1965 crop, and for a division of the net proceeds after the payment of appropriate expenses.
The defendants answered and counterclaimed. In their first count, the defendants allege that the defendant Rosamond Kremers advanced money to pay the expenses of the farming operation for the years 1965 and 1966, and that the plaintiffs have refused to reimburse her for their share of such expenses. The defendants also allege that the plaintiffs are indebted to the defendant Rosamond Kremers for permanent improvements placed upon city property owned by the parties as tenants in common but have refused to pay their share. In the second count, the defendants allege that the plaintiffs and defendants are owners of three city blocks located at Hampden, North Dakota, in the same proportions as the farmland and that during the years 1965 and 1966 the defendant Rosamond Kremers incurred certain expenditures for repair and maintenance thereof which the plaintiffs have refused to pay.
The defendants, by their answer, allege that a sale should be ordered of the land, both farm and city, and the proceeds distributed in such manner as shall be found just after the accountings are settled.
The case came on for trial before the court without a jury on the sole question of whether the farmland should be partitioned in kind or sold. The issue of the plaintiffs' second claim and the defendants' two counts in their counterclaim were not tried but were reserved for trial at a later date.
After trial on the issue of whether the farmland should be partitioned in kind or sold, the trial court ordered a partition of the farmland in kind. It appointed referees who made a report to the court. The court noticed a hearing on the referees' report and thereafter entered its order confirming it. The court then executed findings of fact, conclusions of law, and ordered judgment on partition of the farmland, but it made no adjudication of the plaintiffs' second claim or the defendants' counterclaim. Judgment of partition was entered accordingly. This is the judgment from which the appeal is taken.
The right to appeal is purely statutory. In re Edinger's Estate, N.D., 136 N.W.2d 114; Anderson v. Bothum, 77 N.D. 678, 45 N.W.2d 488. No appeal lies from a judgment that is interlocutory and not final and, consequently, this court has no jurisdiction to hear such an appeal. Anderson v. Bothum, supra.
It is clear from the pleadings...
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