Robert E. Hanson and Investors Oil, Inc. appeal from a partial judgment granting Imperial Oil, Inc. a change of venue and denying Hanson’s motion to dismiss for lack of jurisdiction. We dismiss the appeal for an improvidently granted N.D.R.Civ.P. 54(b) certification.
Imperial and Hanson each own half of an oil and gas well in Divide County. On September 14,1990, Imperial filed an oil and gas well lien against Hanson’s interest for his share of the well's operating expenses. Imperial sued Hanson and a corporation related to him, Investors Oil, Inc., on September 8, 1992 by serving the summons and complaint on Hanson. The complaint seeks to obtain a personal judgment against Hanson for his share of operating expenses, to enforce and foreclose the lien on the, oil well, and to obtain payment from Hanson’s share of royalties held by the oil purchaser. The captions of Imperial’s summons and complaint identify Williams County as the venue of this suit.
On October 15, 1992, Hanson filed an answer and counterclaim in Williams County, alleging that Imperial’s suit was improperly venued because the lien foreclosure must be venued in Divide County where the oil well is located. See NDCC 28-04-01. Hanson’s counterclaim seeks dismissal of the personal claim, a declaration that the lien is void, and damages for Hanson’s inability to sell his well interest while subject to the hen. Hanson also moved to dismiss Imperial’s suit for improper venue.
On October 21, 1992, Imperial filed the same complaint, captioned ‘Williams County,” in Divide County. The next day, Imperial served a similar complaint, seeking additional damages, on Hanson that was properly captioned and later filed in Divide County.
Imperial resisted Hanson’s motion to dismiss the Williams County suit and instead moved to change the venue to Divide County. At a hearing on the motions, Hanson argued that the Williams County court had no jurisdiction over an improperly venued suit to foreclose on realty, citing
Johnson v. Johnson,
Hanson sought a Rule 54(b) certification for the order denying his motion to dismiss for lack of jurisdiction and granting the change in venue. The trial court certified no just reason for delay and ordered entry of a *600 partial “final” judgment changing venue. Hanson appeals.
Hanson argues that jurisdiction attaches when a summons is served “in the manner prescribed by law,” and that the “actual filing of the summons or complaint with the court does not invoke the court’s jurisdiction over the action,” quoting
United Accounts v. Teladvantage, Inc.,
Imperial responds that the change of venue merely corrected a scrivener’s error in the original caption. Even if the Williams County court had no jurisdiction of a Divide County foreclosure, Imperial argues that dismissal would not have been correct because Imperial’s suit also seeks to enforce a personal debt against Hanson, a non-resident of this state. Because the Williams County court at least had jurisdiction of this personal claim, Imperial urges that the court had power to change the venue.
Hanson questions the power of a trial court to allow amendment of a summons and to change an improper venue.
See
N.D.R.Civ.P. 4(g) (“... the court, in its discretion, may allow any process or proof of service thereof to be amended_”);
Cahoon v. North Dakota Workers Compensation Bureau,
Under our recent framework for appeals, we have sometimes allowed an appeal of an order changing venue with a Rule 54(b) certification.
Slaubaugh v. Slaubaugh,
The trial court here determined that there was no just reason for delay and issued a partial “final” judgment for an intermediate order changing venue, not for a judgment as to “one or more but fewer than all of the claims” that Rule 54(b) contemplates. However, “we are not bound by the trial court’s determination and will review the certification to determine if the court abused its discretion.”
Bulman v. Hulstrand Construction Co., Inc.,
The question of the court’s power to grant Imperial a change of venue may
*601
disappear during further proceedings in the trial court. As we held in
Bulman,
The only hardship to Hanson from waiting until final judgment for review of the change of venue is that he may have to litigate a claim that will be thrown out on appeal. This is a risk common to much litigation. Even a jurisdictional reason does not normally warrant an intermediate appeal.
Blue Arm v. Volk,
In granting this Rule 54(b) certification, the trial court ruled that the question of jurisdiction over the lien foreclosure is “crucial” because it may eliminate one claim for relief from the case. The possibility that a second trial may be avoided has not been a sufficient reason for granting a Rule 54(b) certification, absent unusual and compelling circumstances.
Janavaras v. National Farmers Union Property and Casualty Co.,
The trial court viewed the question of jurisdiction in this case as a unique and controlling issue of law. In
Bulman,
The validity of the oil well lien is contested. Should Hanson prevail at trial, our opinion on the question of jurisdiction to foreclose the lien would be advisory and without consequence. Should Hanson lose, he can carry on his challenge to the court’s jurisdiction in the appeal from the final judgment. The effect of a trial on Hanson is not unusual enough to justify a Rule 54(b) certification of an intermediate order.
The trial court erroneously exercised its discretion in making a Rule 54(b) certification and entering a partial “final” judgment for the intermediate order changing venue. We dismiss this appeal for an improvidently granted Rule 54(b) certification.