Burroughs Corp. v. JAMES E. SIMON CONSTRUCTION CO.
220 N.W.2d 225
Neb.
1974
Check Treatment

*1 and hold trial court’s order modify we sequently, for 1971 plaintiff-wife amount due the $18,003.83. as modified.

Affirmed Burroughs Corporation, corporation, appellee, a Co., E. Simon corporation, James Construction appellant. 220 N. W. 2d 225 July 11, Filed 1974. No.

Kelley & for Wallace, appellant. Pederson

Murphy, & Piccolo and LeRoy Anderson, appellee.

Heard before J., White, C. Spencer, Boslaugh, and Brodkey, McCown, Newton, JJ. Clinton, White, C. J. an action brought

This is to recover a money judgment arising an insurance clause in an equipment sale (cid:127) contract between parties. The plaintiff, Burroughs Simon Corporation, defendant James E. Con- purchase of into a contract for entered struction computer system defendant made a down- which purchaser payment. In the contract the defendant as “* * * equipment agreed the benefit insure the to: *2 damage against any shall be abso- kind, loss or Seller lutely responsible equipment the of de- the time for paid building livery and thereafter until Purchaser’s at * * equipment the delivered for in Certain was full designate parties treat the delivered and defendant. The Subsequent property “hardware” and as “software.” as damaged by equipment delivery, a fire. was “application any that software” The defendant denied destroyed damaged by It denied fire. further or was plaintiff any result of due the as a amount was that interrogatories and other After insurance clause. above hearing the motion in the were introduced evidence granted judgment, a summary Court the District for.a partial plaintiff summary judgment based on for the equipment agreement to insure the the defendant judg- summary plaintiff. partial benefit equip- only portion to the “hardware” ment related for trial the issues reserved ment. The court “application any, damage, regarding soft- if to the concerning goods al- action and a cause of ware” second in- legedly not listed in the aforementioned delivered but light herein, of our decision contract. In the surance summary partial wording precise nature of the the judgment important. It is: order is plaintiff’s mo- “IT THEREFORE ORDERED IS summary judgment respect hardware to the with tion for Burroughs consisting Computer, Billing Electronic of a tape punch tape features hardware reader, other a Equipment ‘Ex- marked Contract Sale in the described pe- plaintiff’s amended second A’ and attached to hibit hereby the same is be and other documents tition and plaintiff regard, re- have and and in that sustained $12,545.45. cover from defendant the sum 274 plaintiff’s

“IT IS FURTHER ORDERED that motion summary judgment respect application with to the $3,000.00 software the amount of ‘Ex- referred to in plaintiff’s hibit A’ and the issue raised in second cause of plaintiff’s petition action of second amended be and hereby same is overruled.” appeals partially

The defendant from this order sus- taining summary judgment. the motion for We dismiss appeal being premature. plaintiff appeal premature asserts that the is partial summary judg should be dismissed because being ment, in the nature an order, is appealable. not a final or order which is It is jurisdiction appeals fundamental that our over is based judgments on final or orders. Grantham v. General Tel ephone (1972); 647, 2d Hart § Neb. Ronspies, (1966); 181 Neb. 146 N. W. 2d 795 25- 1911,R. R. S. Sometimes the best answer to case simply to state That it. would almost to be *3 Generally, universally, true here. and almost this court only has held that an order is final no when further action required dispose pending, cause but when cause is retained for further action the order is inter locutory. Casualty Otteman v. Interstate Fire & Co., (1960); Inc., 171 148, Neb. 105 N. 2dW. 583 Merle & Heaney Wallace, Manuf. Co. v. 48 886, 67 N. 883; Neb. W. Continental Trust Co. v. Peterson, 411, 76 Neb. 107 N. W. rehearing, 786, on 417, 76 Neb. N. 316; Wun Peoples Carpet rath v. Furniture 342, & Co., 98 Neb. 152 Barry 736; Wolf, W. v. 27, 148 Neb. 26 303; N. W. 2d Miller v. Schlereth, 33, 151Neb. 36 497; N. W. Koehn 2d Union Fire Co., Ins. 151 859, Neb. 39 N. 808; W. 2d Hark ness v. Central Nebraska Public Power Dist., & Irr. purpose 463, Neb. 48 N. W. 2d of the statute, construing prevent and repetitious our decisions it, is to appeals, jurisdictional and vexatious avoid conflicts be tween this court and the District Court in the decisional expediting prevent delay by and process, the trial and to process. appellate judicial appeals general eliminating interlocu- rule given specific application to the tory has orders, been summary procedure 1951, judgment enactment, in in the provides part: in which 25-1333,R. R. S. section judgment 25-1336 “If 25-1330to on motion under sections upon all the relief case or for is not rendered the whole hearing necessary, at the court asked a trial is and examining pleadings by evi- and the motion, interrogating by shall if counsel, it and dence before practicable material facts exist without ascertain what controversy ao what material facts are substantial thereupon tully good It shall and in faith controverted. specifying an without that order make substantial facts controversy, including the extent to which in contro- or other is not amount of relief proceedings versy, directing ac- such further Upon just. the trial the action facts tion as are specified established, and the trial be deemed so shall supplied.) accordingly.” (Emphasis shall be conducted construing we have stated: “It is observ- In this statute by indicates that section twice inference able portion may disposed by sum- of the action which be mary a trial and twice declares action is done so not portion may dis- not be so that the which sup- posed (Emphasis at of must be submitted a trial.” plied.) Casualty Inc., Fire Otteman v. Interstate & supra. quoted the District Court. have exact order of the

We par- entering order, this sustained The District Court only summary tially the motion for equip- liability “hardware” for certain the defendant’s *4 equipment sale ment under insurance clause further trial retained for contract. It liability “appli- regarding for the issues the defendant’s of action based cation under the first cause software” upon plaintiff’s clause, the insurance and all the second By petition. cause of action in amended its its second terms, statute, section R. author- 25-1333, R. S. izes the court to eliminate issues on which there is no genuine by interlocutory issue fact, orders, of and the squarely language District Court’s order comes within commanding specifying it to make an order the facts controversy, including without substantial extent which the amount or other re- controversy, directing is pro- not in such further lief ceedings just. in the action as are also statute con- templates, by proceed terms, its that the whole case shall disposition by entry to trial and of a final adjudicating all in conclusion, issues the case. In partial summary judgment clearly entered herein was interlocutory appealable nature, not final or or- purpose der. To hold otherwise would emasculate the Summary Judgment destroy purpose Act and its expediting unnecessary trials the elimination of is- by permitting piecemeal sues, appeals, delaying the final disposition of the whole court, case the trial and the acquisition complete jurisdiction of the whole cause appeal to this court. pre-

Consequently, appeal the contention that this is appeal mature is sustained and the should be is hereby dismissed.

Appeal dismissed. Boslaugh, J., concurring, opinion ap- dismissing

I concur in the of the court peal premature. finality

The test of substance of the decision ra- ther Appeal than its form. 4 See Jur. 2d, Am. and Error, p. § 51, it is However, sometimes difficult deter- mine whether a decision is or Some final. difficulty might partial summary be judg- avoided in phraseology clearly ments if expressed were used which *5 decision and avoided nature subject had to execution implication that a entered. been doing Co., Supply Soo business

So corporation, Feed & Morgan Soo Max So appellant, Supply, Feed & appellees. al., et 2d 25 July 11, 1974. No. Filed Boyd, appellant. Smith, & Smith appellees Morgan. Roy Anderson, I. J., Spencer,

Heard before White, Boslaugh, C. JJ. Newton, Clinton, Brodkey, McCown, J. Clinton, plaintiff action as an commenced This cause arising and materialman’s lien a contractor foreclose grain drying of a erection bin. the sale and out of Morgan, alleging, purchaser, Max answered defendant implied things, warranty among breach of fit- other cross-petition, cause of of a the first action and, ness quantity $2,500 in the sum of to a claimed dryer alleged: bin. The defendant stored milo causing drying was defective unit fire in “k.