Rude v. Letnes

• Decision Date: 24 November 1967
• Docket Number: No. 8457,8457
• Citation: 154 N.W.2d 380
• Parties: Ray S. RUDE, Plaintiff and Respondent, v. John LETNES, Defendant and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 380

154 N.W.2d 380

Ray S. RUDE, Plaintiff and Respondent, v. John LETNES, Defendant and Appellant.

Civ. No. 8457.

Supreme Court of North Dakota.

Nov. 24, 1967.

Syllabus by the Court

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

2. An order denying a motion for summary judgment is merely interlocutory, leaves the case pending for trial, and is not appealable.

Nilles, Oehlert, Hansen, Selbo & Magill, Fargo, for plaintiff and respondent.

Letnes, Murray & Marshall, Grand Forks, for defendant and appellant.

TEIGEN, Chief Justice.

The plaintiff has moved in this court for a dismissal of the defendant's appeal from an order denying a motion for summary judgment. Following argument on the motion, we entered a minute order with opinion to follow whereby we granted plaintiff's motion to dismiss and ordered a dismissal of the appeal.

The plaintiff, as movant, contends that an order denying a motion for summary judgment is interlocutory in nature, leaves the case pending for trial, and is not an appealable order under Section 28--27--02, N.D.C.C.

Rule 56 of the North Dakota Rules of Civil Procedure permits any party seeking to recover upon a claim, counterclaim, or cross-claim, or to obtain a declaratory judgment, to move for a summary judgment as to which there is no genuine issue of material fact and upon which the moving party is entitled to prevail as a matter of law. The rule is a device to make possible the prompt disposition of controversies on their merits without a trial, if there is no real dispute as to the salient facts or if only a question of law is involved. It is intended to improve the machinery of justice, to promote the expeditious disposition of cases and to avoid unnecessary trials where no genuine issues of fact are raised.

An order denying a motion for summary judgment is merely interlocutory and, leaving the case pending for trial, it decides nothing, except that the parties may proceed with the case. Appeals from interlocutory orders are entirely creations of statute and lie only in cases authorized by statute. Nord v. Koppang, N.D., 131 N.W.2d 617; In re Fettig's Estate, N.D., 129 N.W.2d 823; In re Glavkee's Estate, 75 N.D. 118, 25 N.W.2d 925; LaPlante v. Implement Dealers Mut. Fire Ins. Co., 73 N.D. 159, 12 N.W.2d 630; Schutt v. Federal Land Bank of Saint Paul, 71 N.D. 640, 3 N.W.2d 417; Stimson v. Stimson, 30 N.D. 78, 152 N.W. 132.

By provisions of Section 28--27--02, N.D.C.C., the following orders are made appealable:

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...