Van Dyk v. Earl

490 P.2d 1057, 87 Nev. 541, 1971 Nev. LEXIS 474

• Court: Nevada Supreme Court
• Decided: November 23, 1971
• Docket: No. 6503
• Status: Published

Opinion

OPINION

Per Curiam:

For the purposes of this opinion, the facts are not complicated and may be stated easily. Appellant was a sleeping occupant in an automobile, driven by Ted Sherman, co-defendant in the proceedings below but not involved in this appeal, and owned by respondent Roy Earl, which was involved in a single car accident occurring near Ensenada, Baja California, Mexico.

Appellant sustained substantial injuries for which he claims Ted Sherman and respondent Roy Earl are responsible.

The lower court dismissed the action as to respondent Roy Earl on the ground that no material issue of fact existed.

The pleadings in the action were supplemented by answers to interrogatories, therefore, the district judge was permitted by NRCP 12(b) to proceed with a summary judgment as provided for by Rule 56(e).

We are obligated to dismiss the appeal, without reaching the merits, for the lower court made no Rule 54(b) determination that there was no just cause for delay. As the action remains pending against defendant Ted Sherman we will not adjudicate fragments of the lawsuit unless properly certified to us. Monsour v. Haddad, 87 Nev. 448, 488 P.2d 916 (1971); Donoghue v. Rosepiler, 83 Nev. 251, 427 P.2d 956 (1967); Wilmurth v. State, 79 Nev. 490, 387 P.2d 251 (1963).

Appeal dismissed.