Summary
holding an order of dismissal without prejudice is not appealable because either side may commence another action
Summary of this case from Albrecht v. Metro Area AmbulanceOpinion
Civ. No. 920396.
November 17, 1993.
Appeal from the County Court, Burleigh County, South Central Judicial District, Gail H. Hagerty, J.
Deborah J. Carpenter (argued), Bismarck, for plaintiff and appellant.
Leann K. Bertsch (argued), Legal Assistance of North Dakota, Bismarck, for defendant and appellee.
Plaintiff sought to evict the defendant from a housing project set aside for low income tenants. The basis for this complaint was alleged violation of the lease provision regarding unauthorized guests. The action was dismissed without prejudice. Plaintiff attempts to appeal from this order of dismissal without prejudice.
"The right to appeal is a jurisdictional matter which we may consider sua sponte." E.g., Johnson v. King, 325 N.W.2d 254, 256 (N.D. 1982). This right to appeal is statutory. Id. Therefore, before we consider the merits of this appeal, we must have jurisdiction. E.g., Gast Constr. Co. v. Brighton Partnership, 422 N.W.2d 389, 390 (N.D. 1988).
An order of dismissal without prejudice is not an appealable order under NDCC § 28-27-02. Runck v. Brakke, 421 N.W.2d 487, 488 (N.D. 1988). "Because either side may commence another action, the order dismissing this action neither `determines the action' nor `prevents a judgment from which an appeal might be taken.' NDCC § 28-27-02(1)." Id. Consequently, due to lack of jurisdiction, this appeal must be, and hereby is, dismissed.
VANDE WALLE, C.J., LEVINE and MESCHKE, JJ., and JAMES H. O'KEEFE, District Judge, concur.
JAMES H. O'KEEFE, District Judge, sitting in place of SANDSTROM, J., disqualified.