Baird v. Matteson
| Decision Date | 11 June 1914 |
| Citation | 147 N.W. 722,28 N.D. 163 |
| Court | North Dakota Supreme Court |
Statement.
Judgment was entered in the district court in this action, and notice of the entry thereof served upon defendant's counsel on the 21st day of July, 1911. Time for settling statement of the case was extended, over plaintiff's objections, until October 31, 1911, when it was settled by the judge. An appeal to this court from such judgment was perfected on the 18th day of September, 1911. No motion was ever made in the trial court to open or modify the judgment. Nothing further was done in the way of printing and serving abstract or statement or briefs by appellants until the 7th day of March, 1914 when respondent's counsel procured from this court an order to show cause why such appeal should not be dismissed for failure to prosecute.
March 20, 1914, appellants filed in this court notice of motion for an order remanding the record and proceedings on appeal to the district court of Eddy county to enable the appellants to make such motion, or take such proceedings therein as they might be advised. Affidavits supporting this motion state that the action is in effect one to determine adverse claims to real estate; that the trial court found certain tax deeds valid, and that the appellant Matteson had no right, title or interest in the premises described; that prior to the trial in the district court a careful search was made of the records and files of the county auditor of Eddy county to ascertain if notices of expiration of redemption had been given or published in connection with the tax deeds referred to; that such notice was required by law, but that nothing was found tending to show such notice had ever been given and that the county auditor was unable to furnish any information pertaining to the same; that, not finding anything tending to show that notice of expiration of redemption had been given or published, the case was tried upon the theory that they were not given or published; that therefore the deeds were void; that, subsequent to the trial of said action and the perfection of the appeal from such judgment, and on or about the 8th day of May, 1912, a search of the old files of a newspaper published at New Rockford, in Eddy county, was made, and notices of expiration of redemption on the sale on which said deeds were based were found, and that they had been printed therein; and the object of the motion to remand is stated to be so the appellant may move the trial court to reopen the case and permit the introduction of record evidence of publication of such notices of expiration of redemption. The affidavit of the party who made the examination of such files and discovered the publication of the notices referred to was made the 29th of August, 1913.
It is shown that on September 20, 1911, counsel for appellant wrote the clerk of the district court of Eddy county, inclosing his check for $ 5, stating that it represented the clerk's fees in the matter of the appeal to the supreme court in this case, and requesting him to credit it; that said check was cashed, and on November 7, 1911, another letter was written said clerk, advising him of the forwarding to him by express of the statement of the case and certificate, together with affidavit of service and notice of settlement, with a request that he get it from the express office, and file it in his office, and acknowledge receipt of the same. The letter closed with this request: "Be sure and tell us immediately when you send this record to the supreme court." Appellant's counsel did not know until March 9, 1914, that the record had not been transmitted to this court. Other statements set forth what was done by appellant's counsel after March 9, 1914, but they need not be set forth here.
Motion to dismiss the appeal granted.
Thorp & Chase, of Jamestown, N. D., for appellant.
Maddux & Rinker, of New Rockford, N. D., for respondent.
It is apparent that, standing alone, the motion to dismiss the appeal should be granted. Delay in doing anything toward prosecuting an appeal from September 18, 1911, to March 1914, or at least from the writing of the letter to the clerk, November...
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