Lowell D. REGSTAD and R.A. (Tony) Kost, Plaintiffs and Appellees, v. Edward H. STEFFES, Steffes Farm Group, a partnership, Adolph Henke, and Frances Henke, Defendants and Appellants. STEFFES FARM GROUP, a partnership, and Edward H. Steffes, individually, Third-Party Plaintiffs and Appellants, v. CITY OF FARGO, a municipal corporation, and County of Cass, a municipal corporation, Third-Party Defendants and Appellees.
Civ. No. 870326.
Supreme Court of North Dakota.
Dec. 6, 1988.
433 N.W.2d 202
David Garaas, of Garaas Law Firm, Fargo, for defendants, appellants, and third-party plaintiffs and appellants.
Garylle B. Stewart, Asst. City Atty., Fargo, for third-party defendant and appellee City of Fargo.
Robert G. Hoy, State‘s Atty., Fargo, for third-party defendant and appellee County of Cass (on brief).
VANDE WALLE, Justice.
Edward H. Steffes and Steffes Farm Group (hereinafter collectively referred to as Steffes) appealed from a partial summary judgment quieting title in Lowell D. Regstad and R.A. Kost (hereinafter collectively referred to as Regstad) to land which had been forfeited for nonpayment of taxes. Because no order comporting with
Steffes owned lots in the city of Fargo. Cass County acquired title to the lots by tax deeds. In January 1987 Cass County informed Fargo that it could purchase the lots for $1.00 per lot if Fargo sent a letter to Cass County authorizing the County to cancel all special assessments on the property. The notice also specified there would be a 30-day waiting period before the deed could be issued as the county auditor “is required to give notice to the former owner.” On February 18, 1987, Fargo notified Cass County that it wished to purchase the lots and directed the County to cancel all 1986 and prior-year special assessments on the lots. The Cass County auditor notified Steffes of a 30-day period within which to redeem by paying the delinquent taxes, penalties, and interest. Steffes did not redeem and Fargo received deeds to the lots which were recorded between March 26 and April 7, 1987. Fargo publicly advertised the lots for sale on April 26 and April 29, requesting sealed proposals by May 4. Regstad purchased the lots from Fargo on May 4, 1987, and received a quitclaim deed from the County.
Regstad brought an action to quiet title to the property naming Steffes as parties. Steffes answered the complaint and filed a third-party complaint against Fargo and Cass County for damages if Regstad succeeded in the quiet-title action. Fargo and Cass County answered the third-party complaint and Fargo counterclaimed against Steffes seeking contractual indemnification for losses from nonpayment of the special assessments. The trial court granted Regstad‘s motion for summary judgment quieting title to the property in Regstad, ordered summary judgment in favor of Fargo and Cass County on the third-party complaint, and denied Steffes‘s motion for summary judgment on the counterclaim. Fargo‘s counterclaim against Steffes thus was not resolved by the partial summary judgment.
“If more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or
third-party claim, or if multiple parties are involved, 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 that determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all of the claims or the rights and liabilities of fewer than all the parties does not terminate the action as to any of the claims or parties, 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.” [Emphasis supplied.]
It is apparent from the wording of the rule that, in the absence of the express determination that there is no just reason for delay and an express direction for the entry of judgment, there is no final judgment. This court has long held that no appeal lies from a judgment that is interlocutory and not final. E.g., Anderson v. Bothum, 77 N.D. 678, 45 N.W.2d 488 (N.D. 1950). We have recently reiterated that holding where partial summary judgment left an unresolved counterclaim and no order or expression complying with
The purpose of
“The claims raised in the main action and counterclaim arose from the same series of transactions and occurrences, are logi
cally related legally and factually, and are closely intertwined. [Citations omitted.] It is likely that an appeal will be taken after the unadjudicated counterclaim is decided, which would involve the same factual situation as the present appeal.” [Citations omitted.]
Justice Sand further noted, at page 239 of the reported case, that there “were no unusual or compelling circumstances presented to the court which dictated immediate entry of a separate judgment.”2
At oral argument Steffes urged that we not dismiss the appeal because the judgment contains an injunction which brings it within the purview of
“The following orders when made by the court may be carried to the supreme court:
...
“3. An order which grants, ... an injunction ...”
Assuming, without deciding, that an order granting an injunction may be appealed without regard to
“3. That this title be quieted as to such claim, and that defendants be forever debarred and enjoined from further asserting the same.”
But the judgment already contains language that the plaintiffs “are the owners in fee simple” of the property and that the defendants “have no estate or interest in, or lien or encumbrance upon the real property.” We have no problem discerning the intent and effect of the judgment without the statutory injunctive language, yet if that language were not in the judgment it clearly would not be appealable without a
A noted authority has observed with regard to
The appeal is dismissed.
ERICKSTAD, C.J., and GIERKE and LEVINE, JJ., concur.
MESCHKE, Justice, concurring.
I concur, but without enthusiasm.
I‘m concerned about two features of this decision: It does not set a brightline for
Of course, I agree that, generally, a final decision should be required for a civil appeal. Considerations of effective and efficient judicial administration support a strong tradition requiring finality. Estate of Stuckle, 427 N.W.2d 96, 101 (N.D.1988) (Meschke, Justice, concurring). But that is an easy generality; the more difficult proposition is what exceptions, if any, should be made to the general rule.
I am uncertain, and I am sure practitioners of the appellate arts will be uncertain too, about implications of the majority‘s assumption, “without deciding, that an order granting an injunction may be appealed without regard to
Notions of good judging commend a decision on the narrowest available ground for a substantive issue. But this decision deals with procedure, not substance. Procedure is the sphere of the Supreme Court. North Dakota Constitution, Article VI, Section 3. Uncertainty about procedure is unbecoming to the court. We should speak as clearly as possible when deciding procedure, to aid practitioners, not puzzle them. Particularly, we should demystify
It should be made clear when finality must be supplied under
I sought to outline a solution in Stuckle, supra at 101: “Subject to appropriate exceptions, perhaps akin to the federal model, a final decision will generally be required for a civil appeal.” (Footnote omitted). Thus, my preference would be to acknowledge the same exceptions as the federal pattern from which we got
In the federal practice, neither lack of finality nor absence of
An appeal from an order granting or refusing an interlocutory injunction has been authorized in federal courts by Congress since 1891. See Act of March 3, 1891, ch. 517, § 7, 26 Stat. 828, from which
Similarly, in North Dakota, an appeal from an interlocutory order granting, refusing, modifying, or dissolving an injunction has been authorized for over a century. See 1887 Laws of Dakota, ch. 20, § 23(3), approved March 11, 1887, and now codified, as amended, at
While both
“Section 1292(a) is grounded in a belief that the enumerated orders are likely to be so important to the parties that an immediate appeal should lie even though the district court still may have one or more closely related questions before it. In effect the policy against piecemeal appeals is outweighed by the substantial harm that might be done by the continued effectiveness of an erroneous district court order. Thus, Section 1292(a) is a legislative exception to the finality principle. On the other hand, Rule 54(b) permits an immediate appeal because the policy against piecemeal appeals is not thwarted in a case in which one or more claims or the rights of one or more parties have been decided finally, leaving other matters unadjudicated that turn on different facts or principles and making it unlikely that the appellate court will be required to retrace its steps on successive appeals.” (Footnotes omitted). 10 Wright, Miller & Kane, Federal Practice and Procedure § 2658.1, pp. 73-74.
Regstad‘s judgment here included an injunction. The federal analogue would acknowledge its appealability without
In the three decades since we borrowed
Instead, the majority disdains the customary injunctive language quieting title as serving little purpose, belittling its importance as a genuine injunction, and concluding that it should not “make appealable a judgment that otherwise would not be....”
The hydraulic-like pressure of steadily expanding numbers of appeals makes the majority‘s action understandable. No doubt that pressure has contributed to the full development of our finality doctrine. See Stuckle, supra. But that pressure should not submerge an important tradition.
The need for judicial economy and efficiency, which reasons against piecemeal ap
Nevertheless, the majority finds it easy to reject an appeal from a quiet title judgment with its customary injunction because a counterclaim is still pending on an interconnected money claim and because the judgment is unaided by express action under
Because this is the first case in which our recently matured doctrine of finality for appeals has confronted any kind of injunction, I fear that today‘s majority opinion does not recognize an important exception to the rule of finality for a civil appeal. At least, the potential for such an exception goes unexamined.
I think it is unfortunate that we have not taken this opportunity to demystify