HAROLD M. HAGER, District Judge.
This is an action brought by the appellants, Carl O. Perdue and Alvina Perdue, against the respondent, Evelyn J. Knudson, to recover damages arising out of an alleged breach of option to purchase real estate. To this complaint the respondent served and filed his answer and counterclaim containing several counts.
The respondent, as defendant, made a motion for summary judgment and, on hearing, the trial court granted such motion and ordered entry of judgment of dismissal of the complaint. The trial court made no adjudication of the defendant's counterclaim. Pursuant to such order, the clerk of the district court entered a judgment dismissing the complaint. From the summary judgment entered the plaintiffs have brought this appeal.
The first question for us to determine is whether or not the complaint-counterclaim situation involved in this case is such as to bring it within the multiple claims rule set forth above.
Rule 54(b) of the North Dakota Rules of Civil Procedure is very similar to Rule 54(b) of the Federal Rules of Procedure and, as this court has never passed on the subject, we will refer to the Federal cases which have passed on this subject.
In 6 Moore, Federal Practice, Sec. 54.35, at 249 (2d ed. 1966), it is stated:
In support of the above statement, the following cases are cited: Winsor v. Daumit, 7 Cir., 179 F.2d 475, which involved a case where an order was entered disposing of just one of several counterclaims; Huntington Palisades P. O. Corp. v. Metropolitan F. Corp., 9 Cir., 180 F.2d 132, a case in which an order dismissing the compulsory counterclaim was made but no other order was made as to the remainder of the issues raised; Schiel v. New York Life Ins. Co., 9 Cir., 178 F.2d 729, wherein an order was entered disposing of plaintiff's claim but not defendant's compulsory counterclaim. In that case the Supreme Court of the United States denied certiorari, 339 U.S. 931, 70 S.Ct. 668, 94 L.Ed. 1351. In Etten v. Kauffman, 3 Cir., 179 F.2d 302, a judgment did not dispose of all the issues raised in the plaintiff's complaint nor defendant's counterclaim. Robinson Brothers & Co. v. Tygart Steel Products Co., 3 Cir., 184 F.2d 534, is a case in which an order dismissing the counterclaim was made. In Island Service Company v. Perez, 9 Cir., 255 F.2d 559, the court said:
The case held that the appeal should be dismissed because of failure of the entry to conform to this clause of the rule.
In Volume 3 of Barron and Holtzoff, Section 1393, page 28, it is stated:
The Federal cases cited above have clearly held that where there is a complaint-counterclaim situation there exists a multiple-claim situation and, in order to settle one of the claims without the other, it must be done by the trial court entering a determination and direction as provided by Rule 54(b).
We have carefully checked the rulings in the above and foregoing cases and we feel that they are based on a sound interpretation of the rule and, since our rule is similar in every respect to that of the Federal rule being interpreted in the cases set forth, this court will follow those rulings and will declare that multiple claims for relief are involved when there is a complaint-counterclaim action before the court.
In the case of Kack v. Kack, N.D., 142 N.W.2d 754, this court had a multipleclaim situation before it and this court, at that time, stated as follows:
In the Kack case, supra, the plaintiff brought an action against the defendant, setting forth two causes of action. In his answer, the defendant denied the allegations material to this lawsuit and asserted that neither of the plaintiff's causes of action stated a claim on which relief could be granted. The defendant then moved for summary judgment in his favor and the district court granted summary judgment of dismissal of plaintiff's second cause of action, but denied the motion for summary judgment as to plaintiff's first cause of action. Following a hearing on the first cause of action, judgment was entered in favor of plaintiff and against the defendant. In the order for dismissal, no mention was made of the order entered granting a dismissal of the second cause of action. Thereafter, the attorneys for the respective parties stipulated that the judgment could be amended so as to cover the dismissal of plaintiff's second cause of action and an amended judgment to that effect was entered thereon.
The question before the court was whether the time for appeal began to run at the entry of the first judgment or on entry of the second amended judgment. This court in that case specifically held:
This court, therefore, held that where a judgment was entered only on one claim, in an action involving multiple claims, the judgment so entered was not an appealable judgment, unless the said judgment was entered pursuant to an express determination and direction made by the trial court as required by Rule 54(b), North Dakota Rules of Civil Procedure.
In the case at bar, the trial court made no express determination and direction to the effect that there was no just
The appeal in this case will therefore be dismissed and the case is hereby remanded to the district court for further proceedings consistent with the holdings set forth above.
TEIGEN, C.J., and STRUTZ, ERICKSTAD and PAULSON, JJ., concur.
KNUDSON, J., deeming himself disqualified did not participate; Honorable HAROLD M. HAGER, one of the judges of the First Judicial District sitting in his stead.