Churchfield v. Cordill

OPINION

Per Curiam:

This is an action to foreclose a labor lien against the real property described in the complaint. After issue was joined, respondent filed a motion for summary judgment. The motion was argued on May 15, 1964. On June 10, 1964, before the judgment was entered on the motion, appellants filed a motion for an order allowing the motion for summary judgment to be reheard. The judgment on the motion was entered July 8, 1964. On August 18, 1964 the lower court entered its order denying the motion to rehear the motion for summary judgment. Appeal is from said order of August 18, 1964. No appeal was taken from the order granting the summary judgment or from the summary judgment based thereon.

Respondent has moved this court to dismiss the appeal upon the grounds that the order appealed from is not an appealable determination, and that appellants’ opening brief fails to discuss any legal issue relating to the order appealed from, to wit, the order denying the motion to rehear the motion for summary judgment.

It is true that appellants’ brief is concerned entirely with the granting of the summary judgment. No mention whatsoever is made of the order appealed from.

The first sentence of the opening brief states:

“Appeal from an order granting motion of defendant-respondent for summary judgment.”

The last sentence of the opening brief which is the conclusion thereof states:

“For the reasons set forth above, appellant respectfully urges that the summary judgment in favor of respondent be reversed.”

Without determining whether or not the order appealed from is an appealable determination under NR CP 72(b) we conclude that the motion to dismiss must be granted upon the ground that the opening brief has no relation to the order appealed from.'

The motion to dismiss the appeal is granted.