Melland Firestone, Inc. v. Streich, 9079

• Decision Date: 30 January 1975
• Docket Number: No. 9079,9079
• Citation: 226 N.W.2d 141
• Parties: MELLAND FIRESTONE, INC., Plaintiff/Appellee, v. Orrin STREICH, Defendant/Appellant, and Oakes Community Industrial Development Corporation, and First James River National Bank, Defendants.
• Court: North Dakota Supreme Court

Page 141

226 N.W.2d 141

MELLAND FIRESTONE, INC., Plaintiff/Appellee, v. Orrin STREICH, Defendant/Appellant, and Oakes Community Industrial Development Corporation, and First James River National Bank, Defendants.

No. 9079.

Supreme Court of North Dakota.

Jan. 30, 1975.

Syllabus by the Court

1. Where multiple claims for relief are involved in an action, the trial court may direct entry of final judgment on one or more, but fewer than all claims only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. Unless such determination is made, any decision which adjudicates fewer than all of the claims shall not terminate the action as to any of the claims. Rule 54(b), N.D.R.Civ.P.

2. When judgment of trial court did not adjudicate defendant's counterclaim 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.

3. The term 'claims' as found in North Dakota Rules of Civil Procedure 54(b) includes issues.

Vogel, Vogel, Brantner & Kelly, Fargo, for defendant/appellant.

Ottmar, Nething & Pope, Jamestown, for plaintiff-appellee.

STAND, Judge.

This case involves a motion made by appellee Melland Firestone, Inc. to dismiss the appeal from the judgment entered in favor of Melland Firestone, Inc. against Streich, the appellant, on the foreclosure of a mechanic's lien for appellant's failure to comply with Rule 10(b), North Dakota Rules of Appellate Procedure.

The basic action consists of a foreclosure of a mechanic's lien by Melland Firestone, Inc. against Streich and a counterclaim by Streich against Melland Firestone, Inc.

The trial court, pursuant to motion made, granted a separate trial for the mechanic's lien and a separate trial for the counter-claim.

Judgment by the trial court was rendered on the mechanic's lien, from which this appeal was taken.

The appellant concedes that he has not complied with the requirements of N.D.R.App.P. 10(b) and that he has done nothing further in pursuance of his appeal since the timely filing of his notice of appeal on August 23, 1974.

The appellant, however, resists the dismissal motion, and in his return to the motion to dismiss states that no further action was taken because the issues raised by the counterclaim remain to be tred, and that he was waiting for the disposition of the counterclaim so that it, if necessary, could also be appealed with the current appeal, as one case.

Both parties agree that the foreclosure of the mechanic's lien and the counterclaim each had its genesis in the same transaction.

Rule 54(b), North Dakota Rules of Civil Procedure, provides as follows:

'Judgment upon multiple claims or involving multiple parties. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of...