[Go to Documents] | Filed May 16, 1988 |
Cen-Dak Leasing, Inc., Plaintiff and Appellee
v.
Fuller Sheldon, Defendant and Appellant
Civil No. 870301
Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Lawrence A. Leclerc, Judge.
AFFIRMED.
Opinion of the Court by Gierke, Justice.
Miller, Norman, Kenney & Williams, P.O. Box 1066, Moorhead, MN 56560-1066, for plaintiff and appellee; argued by Patrick B. Kenney.
Fuller Sheldon, pro se, Rural Route 1, Box 133, Mapleton, ND 58059. No appearance by Mr. Sheldon.
Cen-Dak Leasing, Inc. v. Sheldon
Gierke, Justice.
Fuller Sheldon appeals from a district court order granting immediate possession of various equipment to Cen-Dak Leasing, Inc. [Cen-Dak]. We affirm.
Sheldon asserts that service of the summons and complaint was improper and that his attempted payment of part of the debt through tender of a "sight draft," which was not accepted by Cen-Dak, extinguished his obligation under the lease.1 We find Sheldon's appeal to be frivolous and completely without merit, and we therefore affirm the court's order pursuant to Rule 35. 1 (a) (1), N. D. R. App. P. See Federal Land Bank of St. Paul v. Brakke, 417 N.W.2d 380, 381 (N.D.1988).
Cen-Dak has requested double costs and attorney's fees pursuant to Rule 38, N.D.R.App.P. We award costs and attorney's fees in the amount of $1500.
H.F. Gierke III
Gerald W. VandeWalle
Beryl J. Levine
Herbert L. Meschke
Ralph J. Erickstad, C.J.
Footnote:
1. Sheldon has raised two additional issues regarding Cen-Dak's ability to foreclose on a note and mortgage which Cen-Dak failed to produce at the hearing on the order to show cause. Cen-Dak, however, is not in this action seeking foreclosure of any mortgage. Rather, this is an action under our claim and delivery statutes, Chapter 32-07, N.D.C.C., for return of leased equipment. Sheldon has failed to explain the relevance of the note and mortgage.