Rourke v. Hoover Grain Co.

Bronson, J. In July, 1919, the parties made a land contract cover [248] ing 320 acres of land in Ransom county. It required the payment of $2,200 on March 1, 1920. On August 30, 1920, the defendant served a notice of cancellation of the contract by reason of default in the payment of $2,200 and interest accrued. Therein, the date of the termination of the contract was stated to be March 1, 1921. On February 26, 1921, pursuant to statutory proceedings, the trial court issued an injunctional order requiring further proceedings upon the cancellation to be had in the district court. This order was served upon the defendant’s attorney on March’ 1, 1921. On March 12, 1921, the trial court, upon application, issued an order to show cause why the injunctional order upon the cancellation proceedings should not be dissolved. Upon a hearing had, the previous injunctional order was dissolved. The plaintiff has appealed therefrom. The defendant contends that the order is nonappealable, for the reason that this is not a special proceeding and is not within the terms of § 7841, C. R. 1913, specifically providing for an appeal in similar proceedings affecting mortgage foreclosures; that, furthermore, under the statute, the cancellation of the contract became effective on February 28, 1921, and was therefore complete before service of the injunctional order upon March 1, 1921. The defendant relies upon Tracy v. Scott, 13 N. D. 577, 101 N. W. 905, and McCann v. Mortgage Investment Co., 3 N. D. 172, 54 N. W. 1027, in support of the contention that this order is nonappealable. We are of the opinion that this contention cannot be sustained. A distinction is to be drawn between the procedure to obtain the injunctional order and the proceedings that do obtain after such injunctional order is issued. After the issuance of the injunctional order, further proceedings in cancellation, pursuant to the statute, are required in the district court. Either the cancellation proceedings must be abandoned, or the cancellation takes place through action in the district court. In any event, the proceedings are in the nature of an action. Upon issuing the injunctional order, the court had jurisdiction; a trial might have occurred; a judgment eventually might have resulted. The order, as issued by the trial court, dissolving this injunction operates, in effect, as a judgment denying the injunction and discontinuing the action pending. It thus deprives the plaintiff of a substantial right, if any he had. Furthermore, § 2 of chap. 151, Raws 1917, practically reincorporates the provisions of § 8074, C. R. 1913, and makes the same applicable to the foreclosure of land contracts. In effect, this is, by analogy, a legislative recognition of a right of appeal as provided in subds. 3 of § 7841, C. R. 1913. [249] The contention of the defendant that, pursuant to the statute (chap. 151, Laws 1917), the cancellation pursuant to the notice became effective February 28, 1921, cannot be sustained. The notice of cancellation specifies the time of cancellation. The statute requires the notice to state such time of cancellation. § 8120, C. L. 1913. Under the statute it may not be less than six months. It may be more, if the notice so prescribes. § 8120, C. L. 1913. See Sylvester v. Holasek, 83 Minn. 362, 86 N. W. 336. Accordingly this injunctional order was served anterior to time of cancellation specified in the notice. It is therefore ordered that the order be reversed, and the cause remanded for further proceedings, with costs to the appellant. Robinson, C. J., and Birdzell, J., concur. Grace, J., concurs in the result.