Montgomery v. American Hoist & Derrick Co.

343 N.W.2d 49 (1984)

Donald E. MONTGOMERY, Appellant, v. AMERICAN HOIST & DERRICK COMPANY, a Delaware Corporation, Respondent.

No. C5-83-1904.

Court of Appeals of Minnesota.

January 25, 1984.

Dale C. Nathan, Eagan, for appellant.

Mark A. Gwin, Minneapolis, for respondent.

Considered and decided by POPOVICH, C.J., and PARKER and WOZNIAK, JJ.

MEMORANDUM OPINION AND ORDER

This is a motion by appellant requesting clarification of the briefing schedule and an extension of time. Appellant appealed from a non-appealable order, then amended it, and is uncertain when his briefs should be filed.

We deny the motion requesting extension of time and dismiss the appeal.

Facts

An order for summary judgment, dated October 21, 1983, was issued by the trial court. Appellant appealed from the order. The summary judgment was thereafter entered on November 15, 1983. Appellant then filed an amended notice of appeal and amended statement of the case. The parties indicated no transcript would be required. On January 3, 1984, the appellant filed a motion requesting clarification as to the briefing schedule.

Issue

Is appellant's brief due within 30 days from the date of the filing of the original notice of appeal on November 23, 1983, or 30 days from the date of filing of the amended notice of appeal on December 20, 1983?

Analysis

1. Appealing from an order for summary judgment is non-appealable under Minn. R.Civ.App.P. 103.03.

2. The Rules of Civil Appellate Practice do not provide for the conversion of an appeal from a non-appealable order into an appeal from a judgment by simply filing an amended notice of appeal and amended statement of the case.

3. Appellant can properly appeal from the actual judgment entered November 15, 1983, by properly filing another appeal pursuant to Minn.R.Civ.App.P. 103.01.

4. Since no transcript is required, the briefing period is guided by Minn.R.Civ. App.P. 131.01, which states:

The appellant shall serve and file his brief and appendix within 30 days after delivery of the transcript by the reporter or after the filing of the trial court's approval of the statement pursuant to Rules 110.03 and 110.04. If the transcript is obtained prior to appeal or if the record on appeal does not include a transcript, then the appellant shall serve and *50 file his brief and appendix with the clerk of the appellate courts within 30 days after the filing of the notice of appeal or order granting review. The respondent shall serve and file his brief and appendix, if any, within 30 days after service of the brief of the appellant. The appellant may serve and file a reply brief within 10 days after service of the respondent's brief. If a party prepares a supplemental record, the supplemental record shall be served and filed with his first brief.

5. Appellant is uncertain whether his brief is due within 30 days from the filing of the original notice of appeal or 30 days from the filing of the amended notice of appeal. Appellant has attempted to convert a defective notice of appeal by amending it. He should in fact commence a new appeal from the actual judgment, as provided by the Rules. The judgment was entered November 15, 1983. Appellant has 90 days from that date to perfect a proper appeal. He should start over again.

Decision

The request for extension of time to file a brief is denied. The matter is dismissed because the original appeal was from a non-appealable order.

Dismissed.