Striegel v. Dakota Hills, Inc., 10504
Decision Date | 07 February 1984 |
Docket Number | No. 10504,10504 |
Citation | 343 N.W.2d 785 |
Parties | Curtis G. STRIEGEL and Maurine T. Striegel, Plaintiffs and Appellees, v. DAKOTA HILLS, INC., Moore Engineering Company, Moore Engineering, Inc., Donald Gartner and Kathy Gartner, First National Bank and Trust Co., Dakota Northwestern Bank National Association, Kenneth O. Leonard, R.L. Kilzer, P.C. Pension & Profit Sharing Plan, and Ralph L. Kilzer, individually, Defendants, Hillside Trust, Lovella Biby, Trustee of the Hillside Trust, and Gerald D. Biby, Defendants and Appellants. Civ. |
Court | North Dakota Supreme Court |
Tschider & Smith, Bismarck, for plaintiffs and appellees; argued by Sean O. Smith, Bismarck.
Thomas M. Disselhorst, Bismarck, for defendants and appellants; argued by Thomas M. Disselhorst, Bismarck.
This is an appeal from a partial summary judgment of the District Court of Burleigh County, dated July 5, 1983, canceling a contract for deed. We dismiss the appeal without prejudice.
During January 1979, the Striegels entered a contract for deed to sell a campground property to Gerald Biby. During March 1982, the Striegels brought this action requesting the district court to cancel the contract for deed asserting that Gerald had defaulted under the contract in various ways. Hillside Trust was subsequently joined by the Striegels as a party defendant because Gerald asserted that he had assigned all of his interest in the contract for deed to Hillside Trust, and for purposes of this opinion we will refer to Hillside Trust as the appellant in this case. Hillside Trust counterclaimed against the Striegels asserting, among other things, fraud and misrepresentation by the Striegels, and requested the alternative remedies of damages, contract rescission, and contract reformation.
The Striegels requested and were granted a partial summary judgment canceling the contract for deed, but Hillside Trust's counterclaims remain unresolved. The district court's order for partial judgment did not contain a Rule 54(b), NDRCivP, determination that no reason for delay existed for entry of judgment.
In the absence of a Rule 54(b) determination, a decision of the district court, however designated, which fails to adjudicate all claims of all the parties cannot be entered as a final appealable judgment. Minch v. City of Fargo, 297 N.W.2d 785 (N.D.1980), cert. denied, --- U.S. ----, 104 S.Ct. 105, 78 L.Ed.2d 108 (1983); Melland Firestone, Inc. v. Streich, 226 N.W.2d 141 (N.D.1975). The purpose of this rule is to avoid piecemeal litigation. Melland Firestone, supra.
In Melland, supra, this Court dismissed an appeal where the district court had rendered a partial judgment, without a Rule 54(b) statement, which did not adjudicate the defendant's counterclaim. In dismissing the appeal, we stated at paragraph 2 of the syllabus:
In Hennebry v. Hoy, 343 N.W.2d 87 (1983), this Court dismissed an appeal from a summary judgment which had dismissed the plaintiffs' claim against one of the defendants leaving the claim against the second defendant pending in court. In dismissing the appeal, Chief Justice Erickstad, writing for a unanimous Court, wrote in relevant part:
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...time before entry of judgment adjudicating all the claims and the rights and liabilities of all the parties. See Striegel v. Dakota Hills, Inc., 343 N.W.2d 785, 787 (N.D.1984) (stating absence of a proper Rule 54(b) certification precludes execution on judgment or order that does not dispos......
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