Runck v. Brakke, 870120
| Decision Date | 29 March 1988 |
| Docket Number | No. 870120,870120 |
| Citation | 421 N.W.2d 487 |
| Parties | Madelyne C. RUNCK, Larry Dahlstrom, David A. Overboe, and Karen Brandt, Plaintiffs and Appellees, v. Ronald BRAKKE, Defendant and Appellant. Civ. |
| Court | North Dakota Supreme Court |
Ronald Brakke, pro se.
Cheryl Leslie Ellis, Fargo, for plaintiffs and appellees; submitted on briefs.
Ronald Brakke appeals from an order of the Cass County Court dismissing without prejudice the complaint against him. We dismiss the appeal.
In October 1985 appellees Madelyn C. Runck, Larry Dahlstrom, David A. Overboe, and Karen Brandt brought an action against Brakke to vacate certain premises. Default judgment was entered and subsequently vacated in response to Brakke's Rule 60(b) motion. In vacating the judgment, the trial court also ordered plaintiff Runck to harvest and store all crops on the land in question during the pendency of the lawsuit, and to submit to the court a warehouse receipt.
On December 10, 1986, the court, sua sponte, issued a show cause order as to why the case should not be dismissed without prejudice for want of prosecution. A hearing was held in January 1987 and both sides were given sixty days to move the case along or face dismissal. Nothing of substance was done and the trial court issued a second show cause order. The day before the hearing, Brakke filed a motion seeking to hold plaintiff Runck in contempt for failure to comply with the prior order of the court. At the conclusion of the hearing on the show cause order, the trial court ruled that Brakke's motion was not timely filed under Rule 3.2 of the North Dakota Rules of Court or otherwise. Nor had it been served or noticed for hearing. The plaintiffs then urged the court to dismiss the case with prejudice. Brakke, on the other hand, requested a ten-day continuance within which to serve and file his motion for contempt.
The trial court declined to give Brakke an extension. Instead, relying on both sides' failure to proceed, the court dismissed the complaint without prejudice and carefully explained to Brakke that he was free to commence a new action Brakke has appealed from that order and raises several issues.
An order dismissing an action without prejudice is not appealable under NDCC Sec. 28-27-02. Johnson v. King, 325 N.W.2d...
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Rodenburg v. FARGO MOORHEAD YMCA
...prejudice. Because either side may commence another action, a dismissal without prejudice is ordinarily not appealable. Runck v. Brakke, 421 N.W.2d 487, 488 (N.D.1988). However, a dismissal without prejudice may be final and appealable if the plaintiff cannot cure the defect that led to dis......
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Farm Credit Bank of St. Paul v. Brakke
...adverse judgment dismissed for failure to file cost bond, and noted that major issues on appeal were of "dubious merit"); Runck v. Brakke, 421 N.W.2d 487 (N.D.1988) (dismissed appeal from nonappealable order); Brakke v. Rudnick et al., 409 N.W.2d 326 (N.D.1987) (defendants in suit brought b......
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Sanderson v. Walsh County, 20050303.
...Inc., 1998 ND 171, ¶ 4, 583 N.W.2d 810; Community Homes of Bismarck, Inc. v. Clooten, 508 N.W.2d 364, 365 (N.D.1993); Runck v. Brakke, 421 N.W.2d 487, 488 (N.D.1988). Because either party may commence another action after a civil complaint is dismissed without prejudice, an order dismissing......
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Riak v. State
...dismissing an action “without prejudice” is not considered appealable as a “final” order under N.D.C.C. § 28–27–02. See Runck v. Brakke, 421 N.W.2d 487, 488 (N.D.1988). This Court has explained, however, that a dismissal without prejudice may be considered final, and therefore appealable, w......