Schaff v. Kennelly

• Decision Date: 01 April 1955
• Docket Number: No. 7499,7499
• Citation: 69 N.W.2d 777
• Parties: Paul SCHAFF, Plaintiff and Respondent, v. J. K. KENNELLY and Mary Kennelly, Defendants and Appellants.
• Court: North Dakota Supreme Court

Page 777

69 N.W.2d 777

Paul SCHAFF, Plaintiff and Respondent, v. J. K. KENNELLY and Mary Kennelly, Defendants and Appellants.

No. 7499.

Supreme Court of North Dakota.

April 1, 1955.

Syllabus by the Court.

1. An Order denying a Motion for Judgment on the Pleadings is nonappealable.

2. An Order denying a Motion for dismissal of an action on the merits, and with prejudice, is nonappealable.

3. An Order denying a Motion for the certification of controlling questions of law to the Supreme Court is nonappealable.

4. Upon an appeal from an interlocutory order in a civil action involving private rights, an application for superintending control over the trial court will be denied because the trial judge is not a party to the action, and is neither a necessary nor a proper party thereto, and can only be made a party in an original proceeding for superintending control.

J. K. Murray, Bismarck, for plaintiff and respondent.

Kelsch & Scanlon, Mandan, for defendants and appellants.

GRONNA, District Judge.

Defendants, Kennelly, seek to appeal from an interlocutory order of the district court of Morton county denying three motions made by them, to-wit:

(1) A motion for judgment on the pleadings; and

(2) A motion for dismissal of the action on the merits, and with prejudice, (and without a trial on the merits) because this is, allegedly, a second action upon a former adjudication, Schaff v. Kennelly, N.D., 61 N.W.2d 538, whereby plaintiff and respondent's cause of action herein became res judicata; and

(3) A motion for the issuance by said trial court of an order certifying controlling questions of law to this, the Supreme Court, for final review and determination, pursuant to the provisions of R.C.1943, chapter 32-24, the source of which is Laws 1919, chapter 2, 1925 Supp. Secs. 7849b1 to 7849b3, and District Court Rule no. 17.

Respondent, Schaff, moves that this court dismiss this attempted appeal because said interlocutory order is not appealable. Such motion to dismiss this appeal must be granted, and accordingly we cannot in any manner pass upon the merits of this action, or determine the questions raised and discussed in the briefs concerning the merits. Wall v. First National Bank, 49 N.D. 703, 193 N.W. 51. So far as the merits of this action are concerned, they are not before us, and still remain pending in the court below, the district court. Ostlund v. Ecklund, 42 N.D. 83, at page 86, 171 N.W. 857, at page 858.

Interlocutory orders are not appealable unless made so by statute. Ostlund v. Ecklund, supra; Ferguson v. Jensen, 76 N.D. 647, 38 N.W.2d 560; Union Brokerage Co. v. Jensen, 74 N.D. 154, 20 N.W.2d 343. Appeals from interlocutory orders are entirely the creation of statute, and will lie only in the cases authorized by the statute, R.C.1943, Sec. 28-2702, Comp.Laws 1913, Sec. 7841. Stimson v. Stimson, 30 N.D. 78, 152 N.W. 132; Union Brokerage Co. v. Jensen, supra; Schillerstrom v. Schillerstrom, 74 N.D. 761, at page 762, 24 N.W.2d 734, at page 735; Zenker v. Winder, N.D., 68 N.W.2d 671. See Stormon v. District Court, 76 N.D. 713, at page 718, 38 N.W.2d 785, at page 787; Neff: The 'Reviewable Orders' Statute (1952) 28 N.D.L.Rev. 186; Cunningham: Appealable Orders in Minnesota (1953) 37 Minn.L.Rev. 309.

We are not concerned with the question of whether the order herein is 'reviewable' upon an appeal from a judgment, R.C.1943, Sec. 28-2728; Stormon v. District Court, supra, 76 N.D. at page 718, 38 N.W.2d at page 787; Neff: The 'Reviewable Orders' Statute, supra, p. 186, for the obvious reason that this action has not been tried on its merits. The issue before us is whether the order is appealable.

R.C.1943, Sec. 28-2801, defines an 'Order' thus:

'Every direction of a court or judge, made or entered in writing, and not included in a judgment, is denominated an order.'

R.C.1943, Sec. 28-0901, defines a 'Judgment' thus:

'A judgment is the final determination of the rights of the parties in an action.'

In North Dakota there are no judgments other than final judgments. Universal Motors v. Coman, 73 N.D. 337, 15 N.W.2d 73.

Insofar as respondent's motion to dismiss this appeal is concerned, it makes no difference that the three motions were denied in a single order rather than several orders, because an order appealable in part and nonappealable in part will present for review that part which is appealable. See Marty v. Nordby, 201 Minn. 469, 471, 276 N.W. 739, 740, quoted in Cashen v. Owens, 225 Minn. 25, 29 N.W.2d 440, 442.

Inasmuch as all appeals are statutory, and R.C.1943, Sec. 28-2702, supra, enumerates and specifies what orders are appealable to the Supreme Court, we must examine such statute to determine whether, with respect to one or more of the three motions, such interlocutory order is of a kind which is among the enumerated orders. 28-2702 embraces seven subdivisions or paragraphs numbered from 1 to 7. Subdivisions numbered 2, 3, 4, 6 and 7 may be dismissed from consideration without comment, because they are obviously inapplicable to the order in question. The remaining subdivisions read as follows:

'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;

* * *

* * *

'5. An order which involves the merits of an action or some part thereof; * * *.'

The Honorable J. H. Newton, Clerk of the North Dakota Supreme Court, has published an article in 27 N.D.L.Rev. 155 (April, 1951) entitled 'Appellate Practice and Procedure in North Dakota,' and at pages 161 and 162 there is an enumeration of appealable and nonappealable orders.

Under subdivision 1 of section 28-2702, it is not enough that an order affects a 'substantial right.' To be appealable under subdivision 1, two other elements are made essential, namely, the order must be of a certain character and have a certain effect upon the action, to-wit: first, it must be an order which 'in effect determines the action', and, second, must so operate as to prevent 'a judgment from which an appeal might be taken.' Zenker v. Winder, supra; Persons v. Simons, 1 N.D. 243, 46 N.W. 969; Bolton v. Donavan, 9 N.D. 575, 84 N.W. 357; Whitney v. Ritz, 24 N.D. 576, 140 N.W. 676; Neff: The 'Reviewable Orders' Statute, supra, pages 189 to 194. It is clear, insofar as subdivision 1 is concerned, that statutory permission has not been granted to appeal the kind of an interlocutory order here in question.

The remaining question is whether the appeal can be upheld under subdivision 5, supra, and based upon our construction thereof in previous cases we conclude that it cannot be upheld and must be dismissed. The crucial question in previous cases was whether the order 'involves the merits', and a solution of this question necessitated a construction of the meaning of such phrase. An order which 'involves the merits', within the meaning of the statute, must be decisive of the question involved in the cause or of some strictly legal right of the party appealing as distinguished from mere questions of practice. Hauser v. Security Credit Co., 66 N.D. 399, 406, 266 N.W. 104, 107; Ostlund v. Ecklund, supra, 42 N.D. at pages 84 and 85, 171 N.W. at pages 857 and 858; Ferguson v. Jensen, 76 N.D. 647, 38 N.W.2d 560;

'In short, the statute impliedly contains a distinction between those orders which affect a substantive right of the parties to an action, and those orders which affect a right which is merely procedural in character.' Neff: The 'Reviewable Orders' Statute, supra, 28 N.D.L.Rev. 186 at 199.

We have construed the phrase 'an order which involves the merits of an action or some part thereof', 28-2702, subd. 5, as embracing orders which pass upon the substantial legal rights of the party complaining, whether such rights do or do not relate directly to the cause of action or subject matter in controversy. Hauser v. Security Credit Co., supra, 66 N.D. at page 406, 266 N.W. at page 107; Ostlund v. Ecklund, supra, 42 N.D. at page 85, 171 N.W. at pages 857 and 858; Northern Pacific R. Co. v. Barlow, 20 N.D. 197, 208, 126 N.W. 233, 237; 4 C.J.S., Appeal and Error, Sec. 99, note 12, citing Bolton v. Donavan, 9 N.D. 575, 84 N.W. 357, as does 3 C.J. 452, and 16 A.L.R.2d 1037 and 1 A.L.R.2d 425.

On the other hand, an order is not appealable under such a provision a subdivision 5, supra, unless, in effect, it finally determines some positive legal right of appellant relating thereto. 4 C.J.S., Appeal and Error, Sec. 99, note 13; Ostlund v. Ecklund, supra; 2 Am.Jur., Appeal and Error, sec. 21; 14 A.L.R.2d 462 and 467; 37 A.L.R.2d 591.

'An order which leaves the point involved still pending before the court, and undetermined, does not involve the Merits.' Ferguson v. Jensen, supra, 76 N.D. at page 650, 38 N.W.2d at page 562.

"Where statutes allow an appeal from interlocutory orders 'affecting a substantial right' or 'involving the merits,' an order in the nature of a final judgment decisive of some question or point in the case is meant, as distinguished from mere rulings on matters of practice arising during the progress of the cause.' 2 Encyclopedia Pl. & Pr. 75.' Ostlund v. Ecklund, supra, 42 N.D. at page 84, 171 N.W. 857; In re Glavkee's Estate, 75 N.D. 118, 122, 25 N.W.2d 925; Burdick v. Mann, 59 N.D. 611, 615, 231 N.W. 545.

Applying the foregoing principles, we held, in Wall v. First NationalBank, supra, 49 N.D. 703, 193 N.W. 51, that a motion for judgment on the pleadings does not come within the 'merits subdivision', 28-2702, subd. 5, and such ruling was reaffirmed in Torgerson v. Minneapolis, St. P. & S. Ste. M. R. Co, 51 N.D. 745, 200 N.W. 1013, and in Ferguson v. Jensen, supra, 76 N.D. at pages 650 and 651, 38 N.W.2d 560 at pages 561 and 562. See 14 A.L.R.2d 467, citing the first two cases, and stating that Wall v. First Nat. Bank, supra, followed McMahon v....