J. K. GALLOWAY, James R. GAUSTAD, Paul V. Reslock, Arne Springan, and O. Clifford Wold, as Members of the North Dakota State Board of Optometry, Plaintiffs and Appellants, v. FORUM PUBLISHING COMPANY, a Corporation, Defendant and Respondent.
No. 8262.
Supreme Court of North Dakota.
Nov. 30, 1965.
Rehearing Denied Dec. 30, 1965.
“* * * from that certain order of the Honorable Hamilton Englert, Judge of the District Court of Cass County, North Dakota, dated May 13, 1965, granting defendants Fargo Manufacturing Company, Fargo Grain King Company, Dorothy Burgum, Alton Burgum and Charles Schields motion for summary judgment of dismissal of plaintiff‘s complaint and that the plaintiff appeals from the whole thereof.”
When the plaintiff appealed from the orders granting defendants’ motions for summary judgment, the defendants moved to dismiss such appeal on the ground that the orders appealed from were intermediate orders and not appealable under
Where an order is made by the court, directing that summary judgment be entered on all issues, the aggrieved party may, on entry of such judgment, proceed with his appeal therefrom. Appeals from orders of the district court, however, are limited to those orders described in
This court has held that an order for entry of judgment is an intermediate order which requires the entry of judgment to give it effect, and that such order is not appealable. Olness v. Duffy, 49 N.D. 933, 194 N.W. 113; Great Northern Ry. Co. v. Mustad, 76 N.D. 84, 33 N.W.2d 436.
An order for the entry of summary judgment would be regarded in the same light as an order for the entry of judgment. It is an intermediate order, requiring the subsequent entry of judgment to give it effect. While this court has not had before it an appeal from an order for the entry of summary judgment, Minnesota, under a similar statute, has held that such an order is not appealable. See Shema v. Thorpe Bros., 238 Minn. 470, 57 N.W.2d 157; Nelson v. B. & B. Investment Co., 264 Minn. 393, 119 N.W.2d 713. We hold that an order for entry of summary judgment must be treated the same as an order for judgment. It is therefore held to be an intermediate order and is not appealable.
In the case before us, the court specifically directed the entry of judgments in favor of the defendants and against the plaintiff for a dismissal of the plaintiff‘s complaint. Judgments subsequently were entered on such orders for judgment, as to all of the defendants, and such judgments were entered before the plaintiff took his appeal from the orders for entry of judgment. No appeal having been taken from the judgment in favor of the defendant Arthur Mercantile Company of May 10, 1965, nor from the judgment in favor of the remaining defendants of May 13, 1965, this court is without jurisdiction to proceed further in the matter. The motion of the plaintiff to amend the notice of appeal must therefore be denied and the plaintiff‘s appeal dismissed.
BURKE, C. J., and TEIGEN, KNUDSON and ERICKSTAD, JJ., concur.
Wattam, Vogel, Vogel, Bright & Peterson, Fargo, for defendant and respondent.
STRUTZ, Justice.
The plaintiffs and appellants, as members of the North Dakota State Board of Optometry, bring this action to restrain the defendant from accepting for publication and from publishing certain commercial advertising for the sale of eyeglasses, frames, and optical appliances, which advertising was submitted to it by certain optical companies located in the State of Minnesota. The plaintiffs contend that the acceptance and the publishing of such advertising by the respondent is in violation of
After the service of summons and complaint, the defendant moved for an order
Thereafter, the plaintiffs served notice of motion and motion for leave to amend their complaint, together with a copy of the proposed amended complaint. Such motion was argued before the court, and the court, after due consideration, denied the same. This appeal is from the order denying plaintiffs’ motion for leave to so amend the complaint. The only issue for this court to determine on this appeal is whether the trial court erred in denying plaintiffs’ motion to amend.
The statute which plaintiffs claim defendant is violating is
Our rules of civil procedure provide that a party may amend his pleading once, as a matter of course, at any time before responsive pleading is served or, if the action has not been placed on the trial calendar, such pleading may be amended at any time within twenty days after it is served. Thereafter, such party may amend his pleading only by leave of the court or by written consent of the adverse party. The rule then goes on to provide:
“* * * leave shall be freely given when justice so requires. * * *”
Rule 15(a), N.D.R.Civ.P.
The plaintiffs contend that denying plaintiffs’ motion for leave to amend their complaint was error as a matter of law.
This rule does not, however—as appellants seem to believe—absolutely guarantee that such amendment of pleadings will be permitted in all cases. The amendment of such pleadings, while it is to be freely permitted “when justice so requires,” nevertheless submits to the informed, careful judgment and discretion of the trial court the question of whether such amendment shall be permitted. And, in the absence of a showing of an abuse of such discretion, this court will not reverse an order of the trial court denying the plaintiffs’ motion to amend. The denial of the plaintiffs’ motion for leave to amend their complaint is not erroneous as a matter of law. The main consideration of the court, in determining whether to grant or deny the motion for leave to amend, is whether the granting of such motion or the denial thereof will work an injustice to any of the parties.
When the trial court granted the defendant‘s motion to dismiss plaintiffs’ complaint on the ground that it failed to state a claim upon which relief could be granted, the plaintiffs had an absolute right to amend their complaint, as a matter of course, under
But the plaintiffs did not amend their complaint as a matter of course. Instead, they moved for leave to amend. By making such motion for leave to amend, they waived their right to amend as a matter of course, and the matter was submitted to the court for consideration as if leave of the court were required. Vars v. International Brotherhood of Boilermakers, etc., D.C., 204 F.Supp. 245 (1962).
In passing on the plaintiffs’ motion for leave to amend, the trial court considered the proposed amendment of the complaint and determined that such proposed amendment did not state a claim upon which relief could be granted. The plaintiffs now contend that such determination, that the proposed amendment did not state a claim upon which relief could be granted, was error as a matter of law. Just how the trial court was to determine whether, under
The law which the plaintiffs contend is being violated by defendant prohibits the soliciting of sales of spectacles and other optical appliances and devices by means of advertising or other means of persuading or enticing the public into buying the same. It specifically provides that advertising media, such as the defendant, should not be liable for publishing any advertising furnished to them by a seller of such articles. The mere fact that those who are violating the statute which prohibits soliciting the sale of optical devices are nonresidents of the State, would not make the defendant liable for publishing such advertising, or subject to being enjoined from publishing such advertising, where the statute specifically provides that advertising media shall not be liable for publishing any advertising furnished by such seller.
Counsel for appellants has cited the case of Head, d/b/a Lea County Publishing Co., v. New Mexico Board of Examiners in Optometry, 374 U.S. 424, 83 S.Ct. 1759, 10 L.Ed.2d 983, in which the United States Supreme Court affirmed a decision of the Supreme Court of New Mexico enjoining a newspaper and a radio station from accepting or publishing a Texas optometrist‘s advertising, which violated a New Mexico statute prohibiting such advertising, by quoting prices or terms for sale of eyeglasses.
We have carefully read the United States Supreme Court‘s decision, and we do not believe it to be in point. The New Mexico statute,
“* * * the provisions of this section shall not render any advertising media liable for publishing any advertising furnished them by a vendor of said commodity or material; * * *”
Sec. 43-13-29, N.D.C.C.
We have carefully examined the plaintiffs’ complaint and the plaintiffs’ proposed amendment to the complaint, and we are of the opinion that neither the complaint nor the proposed amendment states a claim against the defendant. The amended complaint alleges that the defendant is guilty of maintaining a nuisance. A nuisance, under our statute, consists in unlawfully doing an act or omitting to perform a duty.
Because such proposed amendment still fails to state a claim against the defendant upon which relief could be granted, the trial court did not err in denying the plaintiffs’ motion to amend.
The order appealed from is affirmed.
BURKE, C. J., and TEIGEN, ERICKSTAD and KNUDSON, JJ., concur.
On Petition for Rehearing.
The appellants have filed a petition for rehearing in which they suggest that the court has overlooked the fact that their proposed amended complaint alleges that the objectionable advertising by the respondent constitutes a public nuisance.
This matter was considered by the court. We believe that the remedy of appellants should be sought through the Legislature. Where that body, in its wisdom, specifically provided that certain publications by advertising media should not render such media liable for publishing the same, we fail to comprehend on what theory the courts should hold such acts by such media a public nuisance.
The petition for rehearing is denied.
STRUTZ, ERICKSTAD, KNUDSON and TEIGEN, JJ., concur.
BURKE, C. J., did not participate.