Cen-Dak Leasing, Inc. v. SheldonCivil No. 870301

Gierke, Justice.

Fuller Sheldon appeals from a district court order granting immediate possession of various equipment to Cen-Dak Leasing, Inc. [Cen-Dak]. We affirm.

Sheldon asserts that service of the summons and complaint was improper and that his attempted payment of part of the debt through tender of a "sight draft," which was not accepted by Cen-Dak, extinguished his obligation under the lease.1 We find Sheldon's appeal to be frivolous and completely without merit, and we therefore affirm the court's order pursuant to Rule 35. 1 (a) (1), N. D. R. App. P. See Federal Land Bank of St. Paul v. Brakke, 417 N.W.2d 380, 381 (N.D.1988).

Cen-Dak has requested double costs and attorney's fees pursuant to Rule 38, N.D.R.App.P. We award costs and attorney's fees in the amount of $1500.

H.F. Gierke III
Gerald W. VandeWalle
Beryl J. Levine
Herbert L. Meschke
Ralph J. Erickstad, C.J.

Footnote:

1. Sheldon has raised two additional issues regarding Cen-Dak's ability to foreclose on a note and mortgage which Cen-Dak failed to produce at the hearing on the order to show cause. Cen-Dak, however, is not in this action seeking foreclosure of any mortgage. Rather, this is an action under our claim and delivery statutes, Chapter 32-07, N.D.C.C., for return of leased equipment. Sheldon has failed to explain the relevance of the note and mortgage.