Ingalls v. Bakken

• Citation: 167 N.W.2d 516
• Decision Date: 24 April 1969
• Docket Number: No. 8539,8539
• Parties: Betty R. INGALLS, Plaintiff and Petitioner, v. A. C. BAKKEN, Judge of the District Court of Grand Forks County, Respondent. Civ.
• Court: United States State Supreme Court of North Dakota

Page 516

167 N.W.2d 516

Betty R. INGALLS, Plaintiff and Petitioner, v. A. C. BAKKEN, Judge of the District Court of Grand Forks County, Respondent.

Civ. No. 8539.

Supreme Court of North Dakota.

April 24, 1969.

Syllabus by the Court

1. When an application for exercise of superintending control is presented under Section 86, North Dakota Constitution the Supreme Court must determine whether the facts present a proper case for the exercise of its superintending control.

2. When an application is made to this court invoking its power of superintending control over an inferior court, and it appears that the case is one in which such power may be exercised, it then becomes necessary for the Supreme Court to determine whether the ends of justice require such power to be used. This control will be exercised only when the applicant has no other adequate remedy at law and when the failure to grant the supervisory writ will result in grave prejudice to the petitioner.

3. When it does not appear that the applicant will suffer serious prejudice if a supervisory writ is not issued, and where the action of the inferior court which is complained of is subject to review on proper appeal, an application for supervisory writ will be denied.

Stokes, Vaaler, Gillig, Warcup & Woutat, Grand Forks, for plaintiff and petitioner.

STRUTZ, Judge.

The plaintiff and petitioner has made application for a supervisory writ, requesting this court to exercise its jurisdiction to supervise the above-named respondent and to require him to vacate an order made and entered in an action entitled Betty R. Ingalls v. Thomas LeRoy Nelson, which order held that the defendant in that action had made a timely appearance and which granted him the right to serve his answer on the plaintiff within ten days.

The facts do not appear to be in serious dispute. The plaintiff commenced her action for breach of promise against the said Nelson by service of summons and complaint on January 30, 1969. On February 19, 1969, which was the last day for answer, the defendant mailed to the attorney for the plaintiff a notice of special appearance, by which the defendant appeared specially and objected to the jurisdiction of the court over the person of the defendant. In connection with such special appearance, the defendant served a motion and notice of motion setting the matter for hearing on March 4, 1969, at 9 a.m.

Thereafter, on February 24, 1969, the plaintiff filed her affidavit of default, stating that more than twenty days had elapsed since service of summons and complaint upon the defendant and that 'the defendant is in default.'

Thereafter, the defendant served a motion to dismiss the plaintiff's complaint, asserting that the court lacked jurisdiction over the subject-matter and over the person of the defendant, and, further, that the complaint failed to state a claim upon which relief can be granted. This motion was noticed for hearing on March 11, 1969, at the hour of 9:30 a.m. When serving this notice on the plaintiff's attorney, the defendant notified such attorney that he was abandoning the motion which had previously been set for hearing on March 4.

On March 11, the matter came on before the trial court, the defendant appearing by his attorney and the plaintiff failing to make any appearance. After considering the defendant's motion, the trial court denied the motion to dismiss the plaintiff's complaint, but the court found that the defendant's motion objecting to the jurisdiction of the court, which had been served on February 19, was a timely appearance entitling the defendant to defend the action on its merits and giving the defendant ten days in which to serve his answer. The answer was served within such ten-day period.

Thereafter, the plaintiff filed her petition in this court for a supervisory writ, praying that this court exercise its supervisory control over the respondent district judge and order said district court to vacate its order permitting the defendant to answer in the Ingalls v. Nelson action.

The superintending power of the Supreme Court is set forth in Section 86 of the North Dakota Constitution. That section provides, in part:

'The supreme court * * * shall have a general superintending control over all inferior courts under such regulations and limitations as may be prescribed by law.'

In the exercise of this superintending control over inferior courts, the Supreme Court is authorized to issue such original and remedial writs as are necessary to the proper exercise of such jurisdiction and authority. Sec. 27--02--04, N.D.C.C.

This court has the duty to determine when a proper case has been presented to it for the exercise of its superintending control. State ex rel. Shafer v. District Court, etc., 49 N.D. 1127, 194 N.W. 745 (1923).

Such control will not be exercised by the Supreme Court in any case where the applicant has an adequate remedy by appeal. State ex rel. Lemke v. District Court, etc., 49 N.D. 27, 186 N.W. 381 (1921). An exception is made in a case where the delay in appealing would cause irrevocable injury and where the facts of the case require emergency relief. State ex rel. Red River Brick Corp. v. District Court, etc., 24 N.D. 28, 138 N.W. 988 (1912).

When such an application is made to the Supreme Court,...