Fritz sought a declaration of default and proceedings to assess damages in a medical malpractice action, pursuant to Rule 55(a)(2), NDRCivP, whеn St. Joseph’s Hospital and Drs. Wolf, Nicely and Hanewald failed to timely respond to a summons served without a complaint, pursuant to Rule 4(c)(2), NDRCivP. (Dr. Hassan рromptly gave notice of appearance, demanded and received a copy of the complaint and timely answered the complaint, and is not involved in this appeal.) When the trial court denied Fritz’s motion for a declaration of default, she appealed, claiming that the order involved the merits of the action, or some part thereof. Section 28-27-02(5), NDCC. St. Joseph’s Hospital and Drs. Wolf, Nicely and Hanewald contend that the order is purely interlocutory and not separately appealable. We agree. The appeal is dismissed.
The factual situation material to our decision is not disputed. The summons, requiring a response within 20 days, was served on all defendants on May 28, 1981. A complaint was filed on June 9, and an amended complaint was filed on June 10. A number of conversations between opposing counsel, sufficient to constitute “apрearances’’, 1 occurred during the year before the summons was served, although none occurred within the 20-day period after the summons was servеd. The formal appearances and written demands for a copy of the complaint, contemplated by Rule 4(c)(2), were not made by St. Jоseph’s Hospital until June 29, and were never made by Drs. Wolf, Nicely and Hanewald. St. Joseph’s Hospital, by mail, served an answer to the amended complaint on July 17, and Drs. Wolf, Nicely and Hanewald, by mail, served an answer to the amended complaint on July 24.
On July 2 Fritz gave notice that she would move for an order to declare St. Joseph’s Hospital and Drs. Wolf, Nicely and Hanewald in default, and for proceedings, in the court’s discretion, to assess damages pursuant to Rule 55(a)(2). The affidavit attached to the notice stated, in effect, that these defendants failed to timely “cause notice of appearance” and to demand a copy of the complaint in the manner contemplated by Rule 4(c)(2). The affidavit did not aver that dеfendants had “failed to plead or otherwise appear,” a requirement of Rule 55(a).
We must keep in mind that Rule 6(b), NDRCivP, provides in part: “When by these rulеs ... an act is required ... to be done at or within a specified time, the court for cause shown may at any time in its discretion [with certain exceptions not relevant to the case at bar] .. . permit the act to be done where the failure to act was the result of excusable neglect .... ” Thе trial *799 court, in denying Fritz’s motion for a judgment by default, found necessarily that all of the appellees had “appeared” in the action, that they hаd a meritorious defense to the plaintiffs’ claim, and that their failure to make timely demands for copies of the complaint was “the result of excusable neglect.” We are not prepared to hold that the trial court abused its discretion in denying the appellants’ motion in light of the many complicating factors of this case, some of which have not been fully discussed in this opinion.
This court, in a variety of circumstances, has expressed a preference for reaching the merits of controversies.
See
West Key Number
System
—Action, Key No. 66
[Ingalls v. Bakken,
No case has been called to our attention that discusses the relationship between a court’s preference to reach the merits and the need to determine if a specific interlocutory order is an appealable order under § 28-27-02(5). If this court gains no jurisdiction by аn attempted appeal of an unap-pealable order, our preference to reach the merits cannot have any bеaring on the matter.
In
Trautman v. Keystone Development Corporation,
Recently, in
Bismarck Pub. Sch. v. Ritterbush Assoc.,
Section 28-27-02(5), NDCC, provides:
“28-27-02. What orders reviewable.— The following orders when made by the court may be carried to the supreme court:
5. An order which involves the merits of an action or some part thereof . .. . ”
An order involves the merits of the litigation only if it is dispositive of a substantive issue. An order granting a claimant’s motion for a judgmеnt by default would be dispositive of a substantive issue — the merits — of the case. However, an order denying the claimant’s motion, as in the case at bar, still leaves the merits of the claim to be resolved.
We conclude that an order denying a motion for judgment by default is not appealable and an attempted appeal therеof grants no jurisdiction to this court beyond authority to dismiss the appeal. The parties argue that, by analogy, the cases that have involved appeals from rulings on motions to set aside judgments by default under Rule 60(b), NDRCivP, should be applied. We agree and, accordingly, rely upon principles expressed in
Hagen v. Altman, supra; United Accounts, Incorporated, Bismarck v. Palmer, supra; King v. Montz, supra; Bettger v. Bettger,
We further rely upon the principle pronounced in
Trautman v. Keystone Development Corporation, supra,
by analogy. Because the trial court, having previously entered a judgment by default and subsequently
granted
a motion to vacate that judgment, there was no final disposition of the action and thus it was
not appealable. See also William Clairmont v. Burlington Northern,
Fritz points to one case where we have been inconsistent. In
City of Bismarck v. Muhlhauser,
In dismissing this appeal, we do not approve of the dilatory conduct of the appel-lees and their counsel in this case. Also, trial courts are encouraged to require more in an affidavit of merits than affiant’s conclusion that there is a meritorious defense.
Also, we reject the contention of appel-lees that Fritz’s appeal is frivolous under the circumstances of this case.
Appeal dismissed. All parties will рay their own costs on the appeal.
Notes
.
See Perdue v. Sherman,