Defendants and appellants had appealed from four orders of the District Court of Grand Forks County. These orders are as follows: (1) Order dated May 10, 1966, making provision for physical examination of plaintiff; (2) Order dated May 25, 1966, denying defendants' motion for order requiring physical examination and X-rays of plaintiff; (3) Order dated May 25, 1966, denying defendants' motion for order compelling answers to interrogatories by oral deposition and production of X-rays; and
The question is: Are these orders appealable?
The statute governing the appealability of orders is Section 28-27-02, N.D.C.C., reading as follows:
The first order providing for the taking of, and respecting the locale of, physical examination of plaintiff, is definitely interlocutory and preliminary in nature. See West Branch Pants Co. v. Gordon, 51 N.D. 742, 200 N.W. 908.
This court in a somewhat analogous situation, in Granger v. Deaconess Hospital of Grand Forks, 138 N.W.2d 443 at 453 (N.D.1965), has quoted with approval the following language from a 1963 decision of the United States Court of Appeals, 8th Circuit, in Cimijotti v. Paulsen, 323 F.2d 716, at 717:
These procedures, by their very advance nature, are preliminary to the trial, do not determine the action, do not involve the merits of the action, and do not affect a substantial right of a party.
The second order again pertains to physical examination of the plaintiff and to the taking of X-rays. This order is non-appealable for the same reasons as for the first order above. Again it is found that the chief cause for difference here is that the plaintiff was willing to go to Fargo, North Dakota, but not to St. Paul, Minnesota, for the medical procedures mentioned, namely, physical examination and X-rays.
The third order relating to the compelling of answers to interrogatories and production of X-rays is closer to the case of West Branch Pants Co. v. Gordon, supra, than either of the others, and again this is clearly a motion relating to pre-trial discovery procedures and is not appealable.
The fourth order denies a motion for continuance and places the case on the calendar for trial. A motion for continuance is not appealable. See Burdick v. Mann, 59 N.D. 611, 231 N.W. 545. It would be against all logic and reasoning to make appealable an order respecting continuance, because obviously, by the act of non-continuance, especially in a case like this where the court's order placed the case on the calendar for trial, the action of the court by this order tends to expedite trial of this action on the merits and to cause it to be decided. We cite the excellent discussion on this entire subject of appealability by Neff, Appeal and Error— Decisions Reviewable—The "Reviewable Orders" Statute of North Dakota, 28 N.D.L. Rev. 186 (July 1952).
In his motion to dismiss, plaintiff and respondent asked this court to award him costs and reasonable attorney fees and expenses, to be assessed against and to be paid by the defendants and appellants, together with such penalty as this court deems proper, on the grounds and for the reasons that the orders appealed from clearly are not appealable, and that said appeal is frivolous and taken solely for the purpose of delaying the trial of the case and continuing the same over the term.
We have no quarrel with the authorities cited by plaintiff and respondent here. However, we do not feel the record affirmatively shows that defendants and appellants acted in bad faith or that they appealed from this order solely for the purpose of delay, which would have been frivolous. The mere fact that appellants' counsel disagrees with this court as to what orders are appealable does not mean that he is being frivolous. There is room for wide difference of opinion on these matters, and questions on the appealability of orders are repeatedly before this court. On this motion, therefore, we find that plaintiff and respondent has failed to sustain his necessary burden of proof, as to the frivolity and delaying purpose of this appeal. As stated, however, each of the orders appealed from is not an appealable order.
TEIGEN, C.J., and KNUDSON, ERICKSTAD and STRUTZ, JJ., concur.