Perdue v. Knudson

• Decision Date: 08 December 1967
• Docket Number: No. 8403,8403
• Citation: 154 N.W.2d 908
• Parties: Carl O. PERDUE and Alvina Perdue, Plaintiffs and Appellants, v. Evelyn J. KNUDSON, Defendant and Respondent. Civ.
• Court: North Dakota Supreme Court

Page 908

154 N.W.2d 908

Carl O. PERDUE and Alvina Perdue, Plaintiffs and Appellants, v. Evelyn J. KNUDSON, Defendant and Respondent.

Civ. No. 8403.

Supreme Court of North Dakota.

Dec. 8, 1967.

Syllabus by the Court

1. Where there is a counterclaim before the court, multiple claims for relief are involved. Rule 54(b), N.D.R.Civ.P.

2. When 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.

Walter O. Burk and Ray H. Walton, Williston, for plaintiffs and appellants.

Bjella, Jestrab, Neff & Pippin, Williston, for defendant and respondent.

HAROLD M. HAGER, District Judge.

This is an action brought by the appellants, Carl O. Perdue and Alvina Perdue, against the respondent, Evelyn J. Knudson, to recover damages arising out of an alleged breach of option to purchase real estate. To this complaint the respondent served and filed his answer and counterclaim containing several counts.

The respondent, as defendant, made a motion for summary judgment and, on hearing, the trial court granted such motion and ordered entry of judgment of dismissal of the complaint. The trial court made no adjudication of the defendant's counterclaim. Pursuant to such order, the clerk of the district court entered a judgment dismissing the complaint. From the summary judgment entered the plaintiffs have brought this appeal.

Under the facts above stated, the first issue for us to determine is whether or not, under our present Rules of Civil Procedure, the matter is properly pending before us. Rule 54(b), N.D.R.Civ.P., provides:

When multiple claims for relief or multiple parties are involved in an action, 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 such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all of the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

The first question for us to determine is whether or not the complaint-counterclaim situation involved in this case is such as to bring it within the multiple claims rule set forth above.

Rule 54(b) of the North Dakota Rules of Civil Procedure is very similar to Rule 54(b) of the Federal Rules of Procedure and, as this court has never passed on the subject, we will refer to the Federal cases which have passed on this subject.

In 6 Moore, Federal Practice, Sec. 54.35, at 249 (2d ed. 1966), it is stated:

Since a claim-counterclaim action involves multiple claims, under amended 54(b) it is unnecessary to distinguish between compulsory and permissive counterclaims, where the court adjudicates the claim but not the counterclaim, or vice versa, And does not execute its certificate, for in that event the adjudication is interlocutory until the court has adjudicated all the claims (including the counterclaims).

In support of the above statement, the following cases are cited: Winsor v. Daumit, 7 Cir., 179 F.2d 475, which involved a case where an order was entered disposing of just one of several counterclaims; Huntington Palisades P. O. Corp. v. Metropolitan F. Corp., 9 Cir., 180 F.2d 132, a case in which an order dismissing the compulsory counterclaim was made but no other order was made as to the remainder of the issues raised; Schiel v. New York Life Ins. Co., 9 Cir., 178 F.2d 729, wherein an order was entered disposing of plaintiff's claim but not defendant's compulsory counterclaim. In that case the Supreme Court of the United States denied certiorari, 339 U.S. 931, 70 S.Ct. 668, 94 L.Ed. 1351. In Etten v. Kauffman, 3 Cir., 179 F.2d 302, a judgment did not dispose of all the issues raised in the plaintiff's complaint nor defendant's counterclaim. Robinson Brothers & Co. v. Tygart Steel Products Co., 3 Cir., 184 F.2d 534, is a case in which an order dismissing the counterclaim was made. In Island Service Company v. Perez, 9 Cir., 255 F.2d 559, the court said:

The crucial defect is that the judgment makes no mention of the counterclaim. There is no disposition thereof. The counterclaim is not dismissed. Relief is not denied thereon by the judgment. There is a paragraph in the conclusions of law which may refer to the subject matter of the counterclaim. It is there stated that this claim 'was not within the issues of the case and the court makes no determination thereof.' This expression was not, however, part of the judgment. Even if the paragraph were an integral part of the judgment, the trial court has no authority to refuse to decide a validly pleaded counterclaim to which there is an answer by such a disclaimer.

The judgment did not comply with the provisions of Rule 54(b), Federal Rules of Civil Procedure, 28 U.S.C.A. There was no judgment disposing of the counterclaim. There was no certificate or finding as required by this Rule.

The case held that the appeal should be...