Budge v. Anderson, 8351

• Citation: 146 N.W.2d 169
• Decision Date: 10 November 1966
• Docket Number: No. 8351,8351
• Parties: Patrick BUDGE, Plaintiff and Respondent, v. Gerald ANDERSON and Donald Bothun, Defendants and Appellants.
• Court: North Dakota Supreme Court

Page 169

146 N.W.2d 169

Patrick BUDGE, Plaintiff and Respondent, v. Gerald ANDERSON and Donald Bothun, Defendants and Appellants.

No. 8351.

Supreme Court of North Dakota.

Nov. 10, 1966.

Syllabus by the Court

1. Orders relating to pre-trial discovery procedures, being interlocutory in nature, are not appealable.

2. An order denying a continuance and setting case for trial, is not appealable.

3. Under the facts in instant case, there is insufficient showing that appeal was frivolous and solely for the purpose of delay.

Stokes, Vaaler, Gillig & Warcup, Grand Forks, for plaintiff and respondent.

Degnan, McElroy, Lamb & Camrud, Grand Forks, for defendants and appellants.

MURRAY, Judge.

Defendants and appellants had appealed from four orders of the District Court of Grand Forks County. These orders are as follows: (1) Order dated May 10, 1966, making provision for physical examination of plaintiff; (2) Order dated May 25, 1966, denying defendants' motion for order requiring physical examination and X-rays of plaintiff; (3) Order dated May 25, 1966, denying defendants' motion for order compelling answers to interrogatories by oral deposition and production of X-rays; and

(4) Order dated May 25, 1966, denying motion for continance. Plaintiff and respondent has moved to dismiss appeal.

The question is: Are these orders appealable?

The statute governing the appealability of orders is Section 28--27--02, N.D.C.C., reading as follows:

The following orders when made by the court may be carried to the supreme court:

1. An order affecting a substantial right made in any action, when such order in effect determines the action and prevents a judgment from which an appeal might be taken;

2. A final order affecting a substantial right made in special proceedings or upon a summary application in an action after judgment;

3. An order which grants, refuses, continues, or modifies a provisional remedy, or grants, refuses, modifies, or dissolves an injunction or refuses to modify or dissolve an injunction, whether such injunction was issued in an action or special proceeding or pursuant to the provisions of section 35--22--04, or which sets aside or dismisses a writ of attachment for irregularity;

4. An order which grants or refuses a new trial or which sustains a demurrer;

5. An order which involves the merits of an action or some part thereof;

6. An order for judgment on application therefor on account of the frivolousness of a demurrer, answer, or reply; or

7. An order made by the district court or judge thereof without notice is not appealable, but an order made by the district court after a hearing is had upon notice which vacates or refuses to set aside an order previously made without notice may be appealed to the supreme court when by the provisions of this chapter an appeal might have been taken from such order so made without notice, had the same been made upon notice.

The first order providing for the taking of, and respecting the locale of, physical examination of plaintiff, is definitely interlocutory and preliminary in nature. See West Branch Pants Co. v. Gordon, 51 N.D. 742, 200 N.W. 908.

This court in a somewhat analogous situation, in Granger v. Deaconess Hospital of Grand Forks, 138 N.W.2d 443 at 453 (N.D.1965), has quoted with approval the following language from a 1963 decision of the United States Court of Appeals, 8th Circuit, in Cimijotti v. Paulsen, 323 F.2d 716, at 717:

The appeal is from an order of the District Court overruling motions to require some witnesses to answer certain questions asked of them in depositions taken by the plaintiff (here appellant) for discovery purposes under Rule 26(a), Federal Rules of Civil Procedure, 28 U.S.C.A. The defendants (here appellees) have filed a motion to dismiss the appeal for want of a final order or judgment. The motion to dismiss is granted.

Rulings on the propriety or impropriety of incidents of deposition taking under Rule 26 in a pending suit are not 'final decisions' within the general right of appeal provided by 28 U.S.C.A. § 1291. Whatever practically may be their significance as a matter of discovery, they do not legally dispose of the issues of the case. Like other steps of preliminary progression, or like the incidents of a trial, they cannot be made the subject of review under § 1291, except after and in relation to the terminating order or judgment in the case. Cf. Alexander v. United States, 201 U.S. 117, 26 S.Ct. 356, 50 L.Ed. 686; Cobbledick v. United States, 309 U.S. 323, 60 S.Ct. 540, 84 L.Ed. 783; Thomas French & Sons v. International Braid Co., 1 Cir., 146 F.2d 735; Dille v. Carter Oil Co., 10 Cir., 174 F.2d 318.

These procedures, by their very advance nature, are preliminary to the trial, do not determine the action, do not involve the merits of the action, and do not...