Fladland v. NORTHWAY CONST., INC.

343 N.W.2d 687 (1984)

Dwayne Gerald FLADLAND and Diane J. Fladland, individually and as parents of Kerrick D. Fladland, a minor child, Plaintiffs/Appellants, v. NORTHWAY CONSTRUCTION, INC., Defendant and Third-Party Plaintiff, v. Dwayne CARDINAL, d/b/a D.C. General Builders, Third-Party Defendant.

No. C9-83-1873.

Court of Appeals of Minnesota.

February 1, 1984.

Paris DonRay Getty, Forest Lake, for plaintiffs/appellants.

Robert E. Salmon, Minneapolis, for defendant and third-party plaintiff Northway Const., Inc.

Mark L. Pfister, Minneapolis, for third-party defendant Dwayne Cardinal, d/b/a D.C. General Builders.

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

MEMORANDUM OPINION AND ORDER Facts

POPOVICH, Chief Judge.

Appellants' notice of appeal said the appeal sought relief from a judgment entered by the trial judge on October 21, 1983, appellants' statement of the case stated the appeal was from an order dated October 19, 1983, filed on October 21, 1983. The judgment was entered on November 3, 1983. Appellants did not appeal from the judgment.

Issue

Do the errors in appellants' notice of appeal and statement of the case require dismissal?

*688 Analysis

1. Statement of the case, Form 133, paragraph 2, the jurisdictional statement requires that when an appeal is from an order the appellant is to specify which clause of Minn.R.Civ.App.P. 103.03 authorizes the appeal:

State whether appeal is from a judgment or order, including date of entry of judgment or filing of order. If appeal is from order, state date of notice of making and filing thereof and which clause of RCAP 103.03 or which statute authorizes the appeal.

Appellants' jurisdictional explanation only said:

Order dated October 19th, 1983, filed October 21st, 1983, and notice of which was mailed on October 24th, 1983.

Appellants' jurisdictional statement is insufficient. Appellants have failed to identify what clause in Minn.R.Civ.App.P. 103.03 authorizes their appeal.

2. The order for summary judgment dated October 19, 1983, is not an appealable order. See, Minn.R.Civ.App.P. 103.03; Montgomery v. American Hoist & Derrick Co., 343 N.W.2d 49, (Minn.App.1984).

3. Appellants' notice of appeal is inconsistent with their statement of the case. The notice said appellants were appealing from a judgment entered in Anoka District Court on October 21, 1983. The statement stated the appeal was from an order dated October 19, 1983, filed October 21, 1983. The notice misstates the date judgment was entered. The judgment was entered on November 3, 1983.

4. Appellants can properly appeal from the actual judgment entered November 3, 1983, by filing an appropriate appeal pursuant to Minn.R.Civ.App.P. 103.01. At the same time a statement of the case consistent with the notice of appeal should be filed.

Decision

Because of these errors and inconsistencies, this matter is dismissed.