Chas. F. Ellis Agency, Inc. v. Berg

• Citation: 214 N.W.2d 507
• Decision Date: 31 January 1974
• Docket Number: No. 8939,8939
• Parties: CHAS. F. ELLIS AGENCY, INC., Plaintiff and Appellee, v. Allan A. BERG, dba Berg's Auto Body Shop and also dba Mandan Iron and Metal, Defendant and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 507

214 N.W.2d 507

CHAS. F. ELLIS AGENCY, INC., Plaintiff and Appellee, v. Allan A. BERG, dba Berg's Auto Body Shop and also dba Mandan

Iron and Metal, Defendant and Appellant.

Civ. No. 8939.

Supreme Court of North Dakota.

Jan. 31, 1974.

Syllabus by the Court

1. The appellate jurisdiction of the supreme court in civil actions is the power vested in the supreme court to review and revise the judicial action of the inferior court and must be evidenced by an appealable order or judgment rendered by the inferior court, and until such order or judgment is rendered there is no right of appeal.

2. A memorandum decision which sets forth the reasons for denial of a motion to reopen and vacate a judgment and which memorandum decision specifically directs the attorney for the prevailing party to prepare an order denying such motion and to submit such order to the court for signature within a time certain is not appealable.

Christensen, Christensen & Baer, Bismarck, for defendant and appellant.

Patrick S. O'Neil, Mandan, for plaintiff and appellee.

PAULSON, Judge.

This is an appeal by the defendant, Allan A. Berg, from a memorandum decision of the Morton County Court of Increased Jurisdiction entered on May 9, 1973, denying Mr. Berg's motion to reopen the default judgment entered by that court on September 26, 1972.

The original action in the county court of increased jurisdiction arose out of a claim for insurance premiums due the plaintiff, the Chas. F. Ellis Agency, Inc. (hereinafter Ellis Agency), from Mr. Berg. The insurance was issued to Mr. Berg by the Ellis Agency on or before April 22, 1966, with premiums then due in the amount of $310.76.

The summons and complaint, which alleged the nonpayment of the insurance premiums, were served on Mr. Berg on September 1, 1972, and were filed on September 26, 1972.

On September 21, 1972, Mr. Berg's attorney mailed a notice of appearance dated September 15, 1972, to the clerk of the district court of Morton County which instructions to that clerk that if the within action had been filed, the notice of appearance was to be filed; and if such action had not been filed, the notice of appearance was to be returned to Mr. Berg's attorney.

Subsequently, on September 22, 1972, the notice of appearance was returned to Mr. Berg's attorney, with the notation by the clerk of court that the action had not been filed as of that date.

On September 26, 1972, the Ellis Agency's attorney filed the action with the Morton County Court of Increased Jurisdiction and obtained a default judgment against Mr. Berg.

On October 16, 1972, Mr. Berg filed a motion to reopen the default judgment but did not bring said motion on for hearing until April 18, 1973.

The hearing on the motion, which was held on April 30, 1973, resulted in a memorandum decision by the court on May 9, 1973, which provided, in pertinent part, as follows:

'It is therefore ordered that defendant's motion is denied and plaintiff's attorney is directed to prepare an order denying said motion and submit it to this court for signature within one week.'

On May 11, 1973, before the order had been prepared and submitted to the trial court for signature pursuant to the instructions contained in its memorandum decision, Mr. Berg appealed to this court. His notice of appeal states that the appeal is 'from the said Memorandum Decision and the whole thereof'.

The record reveals that no final order has ever been entered by the clerk of court in this matter.

Even though the Ellis Agency has not raised the issue with respect to whether the lower court's memorandum decision of May 9, 1973, constitutes an appealable order, it is the duty of this court to dismiss the appeal on our own motion if we conclude that it is not an appealable order. Trautman v. Keystone Development Corporation, 156 N.W.2d 817, 819 (N.D.1968); Shrock v. Roy, 111 N.W.2d 703, Syll. 3 (N.D.1961); Ferguson v. Jensen, 76 N.D. 647, 38 N.W.2d 560, Syll. 2 (N.D.1949).

The right to appeal is purely statutory (Berg v. Kremers, 154 N.W.2d 911, Syll. 1 (ND.1967); Anderson v. Bothum, 77 N.D. 678, 45 N.W.2d 488, Syll. 2 (N.D.1950)); and an order is appealable only when it comes within the provisions of § 28--27--02, N.D.C.C.

A perusal of § 28--27--02, N.D.C.C., does not reveal that there is any provision for an appeal from a memorandum decision.

In Trengen v. Mongeon, 200 N.W.2d 50, in paragraph 1 of the syllabus (N.D.1972), this court held:

'The appellate jurisdiction of the supreme court in civil actions is the power vested in the supreme court to review and revise the judicial action of the inferior court and must be evidenced by an appealable order or judgment rendered by the inferior court, and until such order or judgment is rendered there is no right of appeal.'

In 4 Am.Jur.2d, Appeal and Error § 75, at pages 591--592, it is stated:

'Ordinarily no appeal lies from an opinion as distinguished from a judgment. And the same rule has usually been...