William Clairmont, Inc. v. Burlington Northern, Inc.
| Decision Date | 24 April 1975 |
| Docket Number | No. 9071,9071 |
| Court | North Dakota Supreme Court |
| Parties | WILLIAM CLAIRMONT, INC., Plaintiff-Appellee, v. BURLINGTON NORTHERN, INC., Defendant-Appellant. Civ. |
Syllabus by the Court
1. An order or judgment absolutely vacating a judgment previously entered, leaving an action pending below, is purely interlocutory and is not appealable.
2. After a judgment has been vacated and interlocutory restrictions are imposed on the retrial proceedings, the validity of such restrictions will be determined only upon appeal from the final judgment.
Conmy, Feste & Bossart, Ltd., Fargo, for defendant-appellant, argued by E. T. Conmy, Jr., Fargo.
Richard P. Rausch, Bismarck, for plaintiff-appellee.
This is an appeal by the defendant, Burlington Northern, Inc., from the whole of a 'Judgment on Vacation' entered by the district court of Burleigh County, granting Burlington Northern's motion, under Rule 60(b), N.D.R.Civ.P., for relief from a judgment previously entered in the absence of Burlington Northern. Neither the merits of Clairmont's claim (because there is no judgment on the merits) nor the merits of Burlington Northern's motion (because the motion was granted) are before us for decision. There is no cross-appeal by Clairmont. Burlington Northern claims that the terms imposed in vacating the judgment deprive it of due process.
Appeal is dismissed.
Clairmont instituted this suit against Burlington Northern to recover $7,019.16 for costs to repair structural steel pipe or steel plate damaged during shipment to Clairmont, as consignee, at Glendive, Montana, where Clairmont had a highway construction contract with the Montana State Highway Department. Burlington Northern answered, alleging that the bill of lading imposed a condition precedent which required the filing of a written claim within nine months of delivery. The parties stipulated that Clairmont did not file a written claim within nine months of delivery.
Depositions were taken and everything indicates that Burlington Northern believed it had a meritorious defense and that it intended to defend.
The case was duly calendared and ultimately was set for trial at 9:30 a.m. on June 28, 1974. On that date Clairmont appeared with its counsel and witnesses. No one appeared for Burlington Northern.
The court, apparently proceeding pursuant to Rule 40(c), N.D.R.Civ.P., directed Clairmont to proceed to introduce its evidence and, without further notice to Burlington Northern, a judgment was entered for Clairmont and against Burlington Northern in the sum of $7,019.16, plus interest in the sum of $143.50 and costs taxed and allowed in the sum of $132.50, making a total judgment in the sum of $7,295.16.
Thereafter Burlington Northern, upon affidavit of its counsel, moved under Rule 60(b), N.D.R.Civ.P., that the court reopen the case and vacate the judgment on the grounds that: (1) Burlington Northern received no notice that the case was set for trial on June 28, 1974; (2) Burlington Northern's failure to appear was because of mistake, inadvertence, surprise or excusable neglect; and (3) Clairmant failed to comply with Rule 55(a)(3), N.D.R.Civ.P., which requires eight days' notice before application for entry of a default judgment.
A counter affidavit was submitted by Clairmont's counsel. From the affidavits and the attachments thereto, it appears that Burlington Northern's failure to appear at the trial may have been caused by inadvertence or misinformation on the part of the clerk of the district court.
The motion was heard by the district court on August 28, 1974, resulting in the entry of an 'Order Vacating Judgment with Provisions' and the following 'Judgment on Vacation':
'That the judgment rendered and entered on the 8th day of July, 1974, be and the same is vacated.
'II.
'That the defendant, Burlington Northern, Inc., shall be allowed to present its defense in the matter.
'III.
'That the plaintiff, William Clairmont, Inc., shall not be required to present its witnesses and the testimony adduced at the trial of the matter held on the 28th day of June, 1974, shall be considered and remain a part of the record.
'IV.
'V.
'Defendant, Burlington Northern, Inc., shall pay costs in the sum of Six Hundred Dollars ($600.00) for the expenses incurred in the prior presentation of the matter to this court, including application to attorney's fees.'
The parties present some differences in their statements of the issues. Appellant Burlington Northern states the issues as:
1. Does the trial court's order of August 29, 1974, and judgment entered pursuant thereto, constitute a final judgment such that an appeal will lie therefrom?
2. Did the trial court err in conditioning the vacation upon retention of plaintiff's case, upon requiring defendant to produce plaintiff's witnesses at defendant's expense, and upon payment by defendant of $600.00 in costs and fees?
3. Was defendant entitled to eight days' notice prior to an application for default judgment?
Appellee states that the issues are:
1. What is the responsibility of counsel in an action which is at issue?
2. Did the lower court abuse its judgment and discretion in vacating the judgment upon terms?
3. Is the order of the trial court appealable?
We conclude that because of our disposition of the issue as to whether the 'Judgment on Vacation' may or may not be appealed to this court, it is unnecessary for us to consider the other matters presented. Nevertheless, since other issues which were raised, fully briefed and argued will likely arise on a retrial, we will consider them.
Although not supported by numerous holdings, it must be regarded as law of this State that an order or judgment absolutely vacating a judgment previously entered, leaving an action pending below, is purely interlocutory and is not appealable. Trautman v. Keystone Development Corporation, 156 N.W.2d 817 (N.D.1968).
The order or judgment in this case absolutely and unconditionally vacated the judgment previously entered. The vacation was not conditional or on terms, in that sense. In the sense that terms are imposed by the trial court's order, they operate as rules restricting proceedings on the retrial. When a judgment has been vacated and a retrial ordered with restrictions, the validity of such restrictions will be determined only upon appeal from the final judgment. See 8 A.L.R.3d 1269.
Burlington Northern refers us to the 1966 holding of the United States Court of Appeals...
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