Hank Albers v. Nodak Racing Club

An amended complaint by Albers, plaintiff-appellee, was served upon NoDak Racing Club, defendant-appellant, demanding an equitable share of the revenues derived from car races of the sprint car division. NoDak timely answered the complaint and demanded a trial by jury. Shortly thereafter Albers filed a note of issue dated 17 September 1976 stating, among other things, that a jury trial had been demanded. Interrogatories dated 20 September 1976 by Hank Albers were served upon NoDak. The deposition of Hank Albers was taken on 10 November 1976. NoDak, by written motion dated 22 December 1976 moved to dismiss the action and complaint for failure to state grounds upon which relief may be granted under Rule 12(b)(5), North Dakota Rules of Civil Procedure, or for a more definite statement pursuant to Rule 12(e), NDRCivP. The notice of motion to dismiss stated that it would be based upon the notice, the pleadings, records and file herein and other oral or documentary evidence. Hank Albers responded to the motion to dismiss in writing, dated 27 December 1976, and by motion dated 27 December 1976 moved for summary judgment. He also filed a brief dated 27 December 1976 entitled "Brief in Response to Motion to Dismiss and in Support of Motion for Summary Judgment." On 28 October 1976 NoDak answered Albers interrogatories and on the same day served them upon Albers. The motion for summary judgment came on for hearing 28 December 1976, and on 5 January 1977 the court issued its findings of fact, Conclusions of law and order for summary judgment. The summary judgment pursuant to such order was issued on 5 January 1977, from which NoDak appealed.