Aune v. City of Mandan, 8532

• Decision Date: 18 March 1969
• Docket Number: No. 8532,8532
• Citation: 166 N.W.2d 559
• Parties: Barbara AUNE, Plaintiff and Appellant, v. CITY OF MANDAN, a municipal corporation, Defendant and Respondent. Civ.
• Court: North Dakota Supreme Court

Page 559

166 N.W.2d 559

Barbara AUNE, Plaintiff and Appellant, v. CITY OF MANDAN, a municipal corporation, Defendant and Respondent.

Civ. No. 8532.

Supreme Court of North Dakota.

March 18, 1969.

Syllabus by the Court

1. Section 28--27--26, N.D.C.C., is a remedial statute and this court may permit the appellant to amend his undertaking in order to perfect the appeal, since the service and filing of an undertaking is not jurisdictional.

2. Where an appeal has not been perfected pursuant to the statutes of this State and the rules of this court, the appeal may be dismissed upon proper motion to this court; however, the dismissal of an appeal lies within the sound discretion of this court.

3. For reasons stated in the opinion, the motion for dismissal of the appeal is denied.

William R. Mills, Bismarck, for plaintiff and appellant.

Conmy, Conmy, Rosenberg & Lucas, Bismarck, for defendant and respondent.

PAULSON, Judge.

This matter came before the court on March 4, 1969, upon the respondent's, City of Mandan's, motion to dismiss the appeal. The City's motion is based upon two grounds, namely, that since the undertaking was executed by the appellant, Barbara Aune, and was signed by only one surety, it did not comply with the requirements of § 28--27--09 of the North Dakota Century Code; and, further, that Barbara has failed to perfect the record on appeal and cause the same to be filed in this court within the time allotted.

Barbara opposes the motion by urging that the undertaking was executed pursuant to her counsel's interpretation of the law, and presents to this court a motion to permit the substitution of an additional surety, and buttresses her position by contending that such motion was made as soon as the City offered an objection to the bond, and that Barbara's belated forwarding of the appeal record was justified for reasons later set forth in this opinion.

Prior to proceeding with a discussion of the motion, it is necessary to consider the status of the case. The trial court, on October 2, 1967, executed its order permitting the City to amend its answer and an additional order granting the City's motion for summary judgment of dismissal, both of which were served and filed on October 3, 1967. The summary judgment was docketed on October 16, 1967, by the clerk of the District Court of Morton County, North Dakota, and notice of entry was duly served. On November 30, 1967, Barbara appealed from the trial court's order granting the City permission to file an amended answer and from the summary judgment of dismissal. The notice of appeal was served upon the City on November 30, 1967, and filed with the clerk of the district court on December 1, 1967. The undertaking on appeal was served upon the City by mailing a copy of the undertaking under date of January 31, 1968. The bond at no time was approved by the clerk of the district court. A transcript, together with a stipulation settling the statement of the case, was mailed to the attorneys for the City on February 5, 1969, and the stipulation settling the statement of the case was shortly thereafter signed by the attorneys for the City. The record on appeal was, on February 28, 1969, transmitted by the clerk of the district court to this court. Barbara during none of the times herein mentioned had made any application to the district court for any orders of extensions of time for the perfection of the appeal and delaying transmittal of the record to the Supreme Court. Thus a period of sixteen months had elapsed from the time that the order and judgment were entered until the record was transmitted to this court.

The City's first contention is that the undertaking was improper for the reason previously indicated in this opinion, and that its motion for dismissal of the appeal should be granted by virtue of noncompliance with § 28--27--09, N.D.C.C. This section provides in part that:

'* * * an undertaking must be executed on the part of the appellant by at least two sureties * * *.'

and the record reveals that this statute was not strictly followed. Barbara's counsel without conceding the error with reference to the number of sureties required, requests this court to permit the addition of the second surety, which complies with the statute, and urges that this is a procedural and not a jurisdictional matter and thus that this court should grant Barbara's application for the amendment of the bond which contains two sureties and that this bond be approved as to form and amount. Section 28--27--26, N.D.C.C., provides, however, that:

'When a party in good faith shall give notice of appeal and shall omit through mistake or accident to do any other act necessary to perfect the appeal to make it effectual or to stay proceedings, the court from which the appeal is taken or the supreme court, or any one of the justices thereof, may permit an amendment or the proper act to be done on such terms as may be just.'

This court has been disposed to construe § 28--27--26 liberally, and has often held that defects in an undertaking may be supplied by amendment or by the giving of a new undertaking. E.g. In re Guardianship of Frank, 128 N.W.2d 355 (N.D. 1964); Wasson v. Brotherhood of Railroad Trainmen, 65 N.D. 246, 257 N.W. 635 (1934). This court has also held that § 28--27--26 is remedial in nature and is intended to favor the perfecting of appeals (In re Guardianship of Frank, Supra at 358), and if the appeal has been taken in good faith, then the court may in its discretion allow the amendment to an undertaking even though the time for appeal has expired.

In the instant case, while the original undertaking was defective because there was only one surety on the undertaking, both the notice of appeal and the undertaking were filed within the statutory time limit, and Barbara should be permitted to file the bond with two sureties in addition to the principal in order to comply with § 28--27--09, N.D.C.C.

The City for its second contention urges that Barbara failed to transmit the appeal to this court within the time specified by the Supreme Court rules and thus its motion for dismissal should be granted.

Supreme Court Rule 21 states:

'Perfection of Appeal and Return of Record. An appeal is deemed perfected, in civil cases, upon both the service and filing of a notice of appeal, with undertaking on appeal, when required, and in criminal cases, upon service and filing of a notice of appeal.

'The clerk of the District Court shall cause the proper return to be made and the same, together with the statement of the case, if any, to be transmitted to and filed with the clerk of the Supreme Court, within fifteen days after the appeal is perfected, unless, by order of the trial court, made upon the application of any of the parties, such return shall be stayed for purposes of the appeal for an additional time, not exceeding forty-five days.'

The City also urges that Supreme Court Rule 7 provides that if Barbara fails to comply with this rule, the case may be subject to dismissal unless the Supreme Court otherwise orders. Supreme Court Rule 7 provides in substance that upon perfecting his appeal to the Supreme Court, the appellant shall prepare his brief, serve the same, and file it with the clerk before or at the time the record of the case is transmitted to the Supreme Court.

The City further urges in support of its motion for dismissal that there has been a noncompliance with Supreme Court Rule 13, which states in part:

'* * * if the appellant shall fail or neglect to serve and file the record, or his...