Nord v. Koppang, 8076

• Decision Date: 19 November 1964
• Docket Number: No. 8076,8076
• Citation: 131 N.W.2d 617
• Parties: Tora NORD, Plaintiff and Respondent, v. Oscar KOPPANG, Defendant and Appellant.
• Court: North Dakota Supreme Court

Page 617

131 N.W.2d 617

Tora NORD, Plaintiff and Respondent, v. Oscar KOPPANG, Defendant and Appellant.

No. 8076.

Supreme Court of North Dakota.

Nov. 19, 1964.

Rehearing Denied Dec. 22, 1964.

Syllabus by the Court

1. An appeal from an order must be taken within 60 days after written notice thereof.

2. Appeals from interlocutory orders are creations of statute and lie only in cases authorized thereby.

3. An order denying a motion to dismiss an action for non-prosecution does not involve the merits of the action or some part thereof so as to be appealable under a provision of a statute allowing appeals from orders which involve the merits of an action.

Letnes & Hansen, Grand Forks, for defendant and appellant.

Ringsak & Webb, Grafton, for plaintiff and respondent.

BURKE, Judge.

Upon a motion for a default judgment in this case, the trial judge made an order allowing plaintiff to proceed 'as if by default, unless defendant filed his answer within 30 days from the date of the order.' The defendant has appealed from this order.

Plaintiff commenced this action by the service of a summons only, on August 2, 1957. On August 23, 1957, the complaint was filed in the office of the clerk of the district court. Rule 4(b), N.D.Civ.P. provides: '* * * If in such case (where the complaint is not served with the summons) the complaint is not filed with the clerk within twenty days after service of the summons the action will be deemed discontinued.' The defendant, apparently relying upon the fact that the complaint had not been filed within 20 days after the service of the summons, chose to consider the action discontinued and did not answer.

On July 28, 1961, the plaintiff served Notice of Application for Judgment by Default upon the defendant.

The defendant interposed objections to the allowance of the application upon the ground that under Rule 4(b), supra, the action is deemed discontinued. On October 2, 1961, the trial judge ordered that the plaintiff would be allowed to prove her case by default unless the defendant filed his answer to the complaint within 10 days from the date of the order.

On October 5, 1961, defendant moved the court to set aside its order of October 2, or to suspend its operation to enable defendant (1), to show lack of excusable neglect on the part of defendant, (2), to require plaintiff to prove excusable neglect as a reason for his delay and (3) to allow the defendant 30 days to answer if the motion was in other respects denied. Before this motion was decided and on May 16, 1962, another motion was filed asking (1), that the court vacate its order of October 2, 1961, for the reason that no showing of excusable delay had been made, and (2), that the action be dismissed with prejudice. This motion was noticed for hearing on May 23, 1962.

On May 17, 1962, the trial judge ordered that the motion of October 5, 1961, '* * * is, in all things, denied except that the defendant shall have thirty (30) days from the date hereof in which to file his answer.' This order does not mention the motion of May 16, 1962. It had been noticed for May 23rd and apparently was not considered.

On June 1, 1962, the defendant appealed to the Supreme Court. The Notice of Appeal contains the following language: 'The above named defendant appeals to the Supreme Court of the State of North Dakota, from the Memo Decision of the Honorable Albert Lundberg dated October 2, 1961, and the Supplemental Memo Decision dated May 17, 1962, issued in the above action, and defendant appeals from the whole of said orders.'

We point out that memorandum decisions of trial courts are not appealable. Orders entered upon such decisions are appealable if they come within the statutory definition of appealable orders. Section 28-27-02, NDCC. An appeal from an order must be taken within 60 days after written notice of the order. Section 28-27&0-04. At the time this appeal was taken the time for appeal from the order of October 2, 1962, had expired if that order was appealable. This appeal may therefore be considered only with respect to the order of May 17, 1962, which denied the motion of October 5, 1961.

The only matters presented to the court by this motion were the issue of excusable neglect on the part of the plaintiff and defendant's request for additional time to answer in the event that the motion was otherwise denied.

The trial court found that plaintiff's delay in prosecuting the case was excusable and ordered the defendant to answer within 30 days in accordance with defendant's request.

The first question for decision is whether such an order is an appealable order. The order is purely interlocutory in character. It decides nothing except that the plaintiff may proceed with her case. Appeals from the interlocutory orders are entirely creations of statute and lie only in cases authorized thereby. Schutt v. Federal Land Bank of St. Paul, 71 N.D. 640, 3 N.W.2d 417; Stimson v. Stimson, 30 N.D. 78, 152 N.W. 132.

By the provisions of Section 28-27-02, NDCC the following orders are made appealable.

'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...