|Filed Nov. 17, 1993|
Community Homes of Bismarck, Inc., Plaintiff and Appellant
Ginger Clooten, Defendant and Appellee
Civil No. 920396
Appeal from the County Court for Burleigh County, South Central Judicial District, the Honorable Gail H. Hagerty, Judge.
Opinion of the Court by Neumann, Justice.
Deborah J. Carpenter (argued), Carpenter Offices, P.O. Box 2761, Bismarck, ND 58502-2761, for plaintiff and appellant.
Leann K. Bertsch (argued), Legal Assistance of North Dakota, P.O. Box 2419, Bismarck, ND 58502-2419, for defendant and appellee.
Community Homes of Bismarck, Inc. v. Ginger Clooten
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.
William A. Neumann O'Keefe, D.J.
Beryl J. Levine
Herbert L. Meschke
James H. O'Keefe, D.J.
Gerald W. VandeWalle, C.J.
O'Keefe, D.J., sitting in place of Sandstrom, J., disqualified.