Aрpeal from an order of the Hennepin County District Court dismissing appellants’ third-party complaint. The matter came before that court on the motion of the respondents fоr judgment *143 on the pleadings, or, alternatively, summary judgment. 1 The court’s order dismissing appellants’ third-party complaint for “failure to state a cause of action upon which relief can be granted” was entered and filed with the clerk of court June 20, 1974. Respondents served a copy of the court’s order, bearing its date of filing, 2 on appellants December 20, 1974, and this appeal was taken January 10, 1975. We аffirm.
Appellants leased a building from the plaintiff for a term of 5 years, commencing July 1, 1971, to be used for the storage and maintenance of their fleet of garbage trucks. In February 1972, aрproximately 8 months after the commencement of the term of the lease, appellants vacated the premises and terminated their payment of rent. In the main action against appellants, the plaintiff sought recovery of rentals to July 1, 1973, at which time plaintiff was apparently able to relet the premises. That action was tried to a jury сommencing June 12, 1975, and based on its verdict, judgment was entered July 17, 1975, for the plaintiff in the amount of $8,369.75. 3
Appellants, in their third-party complaint, allege that the actions of the respondents forced them to abandon the lease, and that the respondents are therefore liable, in whole or in part, to appellants for any amount for which appellants might be held liable to plaintiff. Respondents include an unincorporated association of residents in the neighborhood of the leased premises (Concerned Neighbors, also knоwn as Concerned Citizens), its president, Duane Barnhart, and two of its members, Linda *144 Ketokoski and Ernest Kliewer. Appellants claim in the third-party complaint:
“X.
“Duane Barnhart specifically organized neighborhood opposition to defendants use of the premises and members of said unincorporated association made threats of violence to and аgainst defendants. The members of said unincorporated association repeatedly and continuously trespassed upon the premises and harassed defendants. Linda Ketokoski specifically told defendants that if they did not leave the premises that she would see to it that the premises were bombed with explosives. Ernest Kliewer threatened to attack and physically harm defendants and their agents if they did not leave the premises. John Doe and Mary Roe also threatened individually and in concert with others to attack and physically harm defendants and their agents if they did not leave the premises.
“XI.
“As a direct result of the above described action, the third party plaintiffs were forced to abandon thе foregoing described premises and * * * may be held liable to plaintiff for the sum demanded by plaintiff in its complaint.
“WHEREFORE, defendants request that * * * in the event that the Court should determine that defendаnts are in any way liable to plaintiff, [judgment be entered] granting the defendants * * * an equal amount over and against third party defendants and each of them by way of contribution or indemnity.”
The issuеs raised are whether the order dismissing appellant’s third-party complaint is appealable, and whether the third-party complaint states a claim up which relief can be granted in the third-party action.
Respondents challenge the appealability of the court’s order dismissing appellant’s third-party complaint. 4 The matter *145 was brought before the court оn an alternative motion for judgment on the pleadings, Rules of Civil Procedure, Rule 12.03, or summary judgment, Rule 56. The third-party complaint was dismissed on the basis of the trial court’s ruling that it failed to state a claim upon which relief could be granted. A challenge to a pleading on that ground, while permitted under Rule 12.03 after a responsive pleading has been served, is also permitted under Rule 12.02(5) prior to a responsive pleading. See, also, Rule 12.08(2). The court’s memorandum attached to the order of dismissal makes it clear that the failure to state a claim is limited solely to a failure to state a cause of action cognizable in a third-party action under Rule 14.01.
How the trial court’s order is characterized procedurally is critical to its appealability. If viewed as an order granting judgment on the pleadings, it is nonappealable, Locke v. Henry,
In the opinion of the court, the parties have not adequately stated all of the facts on which the third-party relief was sought; nor have they adequately briefed the subject of the appealability of the trial court order. Moreover, the main action has been tried tо judgment, which has already been satisfied. We, therefore, decline to decide whether the order of the trial court was appeal-able.
However, in our opinion the triаl court correctly decided that, on the facts contained in the record, the subject of the third-
*147
party action was not a proper subject for relief in a third-party action. Koenigs v. Travis,
Affirmed.
Notes
Appellants filed a cross-motion for production of documents pursuant to Rules of Civil Procedure, Rule 34, which was denied but not appealed.
The cоpy of the order mailed appellants, somewhat confusingly, bears two dates of filing — the afternoon of June 20, 1974, and the morning of June 21,1974. In any event, the fact of filing with the clerk of court of Hennepin County District Court is clear from the copy of the order.
That judgment has been satisfied.
Respondents also challenge the appealability on the ground that the time for appeal had еxpired. The trial court’s order was entered June 20,1974, but notice of its filing was not served on appellants by respond *145 ents, as required by Rules of Civil Appellate Procedure, Rule 104.01, until Decеmber 20, 1974. Appeal was taken from that order January 10, 1975, well within the 30-day limitation. Respondents cite Rules of Civil Procedure, Rule 58.01, for the proposition that the time for appeal began to run on the date the order was entered since the effect of the order was to deny appellants all relief, a circumstance which under Rule 58.01 is supposed to causе the clerk to enter judgment forthwith. The argument loses sight of at least two facts: (1) No judgment was entered nor has any judgment ever been entered on the dismissal, and (2) Rule 54.02 would have preventеd entry of judgment unless so ordered by the trial court, which was not the case here. (Rule 54.02 is discussed infra).
Rule 54.02 provides as follows: “When multiple claims for relief or multiple parties are involvеd in an action, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, hоwever designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or рarties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.”
In Buchmаn Plumbing Co. Inc. v. Regents of the University of Minnesota,