Bryan v. Miller
| Decision Date | 01 November 1944 |
| Docket Number | 6937. |
| Citation | 16 N.W.2d 275,73 N.D. 487 |
| Parties | BRYAN et al. v. MILLER. |
| Court | North Dakota Supreme Court |
Rehearing Denied Nov. 28, 1944. [Copyrighted Material Omitted]
Syllabus by the Court.
1. The requirement that the appellant on appeal to the district court from a judgment of a justice court must serve and file an undertaking, or make a deposit and serve notice of the making of such deposit, is mandatory and compliance therewith is a prerequisite to the transfer of jurisdiction to the district court by the appeal.
2. Appellate jurisdiction is derived from constitutional or statutory provisions, can be acquired and exercised only as prescribed by the law, and cannot be conferred by consent of the parties.
3. In North Dakota, district courts are vested by the constitution with original jurisdiction of all causes both at law and equity, except as otherwise provided in the consititution, and such appellate jurisdiction as may be conferred by law. Section 103, North Dakota Constitution.
4. The legislature has provided that appeals may be taken to a district court from the judgment of a justice court either (1) on questions of law alone, or (2) on questions both of law and fact, and a new trial had in the district court. Comp.Laws 1913, Secs. 9164, 9172.
5. It is the essential criterion of appellate jurisdiction that it revises and corrects the proceedings in a cause already instituted, and does not create that cause.
6. An appeal from a justice court to a district court for a new trial of the case in the district court does not involve solely an exercise of appellate jurisdiction by the district court. The appellate functions are at an end when the case has been transferred to the district court pursuant to the prescribed appellate procedure and brought within the jurisdiction of the district court for trial. The trial of the case anew by the district court does not involve the exercise of the appellate jurisdiction of the district court but involves the exercise of the original jurisdiction vested in the court by the constitution to try and determine civil actions.
7. Where a court has jurisdiction of the subject matter of an action, general appearance, without objection to jurisdiction, and the invoking of the power of the court in a matter pertaining to and directly affecting the proceedings to be had in the action, give jurisdiction of the person.
8. Jurisdiction of the subject matter is the power to deal with the general subject involved in the action; it is the power of the court to hear and determine causes of the general class to which the particular cause belongs.
9. Where a judgment has been rendered in an action within the jurisdiction of the justice court and a defendant appeals therefrom demanding a trial anew in the district court, but fails to serve and file a sufficient undertaking on appeal or make timely deposit in lieu of an undertaking, and, as a result, the appeal is rendered defective in a jurisdictional matter; but the case is docketed and placed upon the calendar of the district court and at the time appointed for trial both parties appear without objection and the plaintiff submits a written stipulation, entitled in the action as pending in the district court, providing that an amendment be made ay adding another party plaintiff, and upon such stipulation moves that the papers in the action be amended accordingly, and the court thereafter grants the motion and directs the amendment to be made, the action is brought within the original jurisdiction of the court and it has the same power to try and determine the action as though it had been commenced originally in the district court. Deardoff v. Thorstensen, 16 N.D. 355, 113 N.W. 616, and Aneta Mercantile Co. v. Groseth, 20 N.D. 137, 127 N.W. 718, distinguished.
10. When the jurisdiction of the court over the subject matter and parties has attached by such general appearance and invoking of jurisdiction, the jurisdiction may not thereafter be capriciously terminated by a party who made such appearance and invoked such jurisdiction; and such jurisdiction continues until the issues have been finally determined, or the action had been disposed of otherwise according to law.
F. E. McCurdy, of Bismarck, for appellant.
J. K. Murray, of Bismarck, for respondent.
This is an appeal from a judgment of the district court dismissing an appeal from a justice court. The action was brought to recover damages to an automobile alleged to have resulted from a collision occasioned by the negligence of the defendant. The defendant made default and, on August 30, 1943, plaintiff recovered judgment against the defendant for the amount demanded in the summons, viz.: $197.15 and costs. On September 13, 1943, the defendant served upon the attorney for the plaintiff a notice of appeal, a verified answer, and an 'undertaking on appeal.' These papers were filed with the clerk of the district court on the same day. The undertaking was executed in the name of the defendant by his attorney. It contains the provisions prescribed by law for an undertaking on appeal from the justice court, but it was not executed by any surety. However the undertaking contained recital that: 'In lieu of surety on this undertaking the said Abe Miller is depositing the sum of One hundred dollars in cash with the Clerk of the District Court of Burleigh County, North Dakota, as surety and from which any costs are to be paid on the appeal.'
The action instituted in justice court was entitled 'Russell Bryan doing business under the trade name of Economy Cab Co. v. Abe Miller.' On January 20, 1944, the attorneys for the respective parties entered into the following written stipulation:
The case appeared upon the calendar of the regular February, 1944 term of the district court of Burleigh County, and came on to be heard on February 4, 1944. At that time, according to the transcript of the proceedings made by the official stenographer, transmitted with and as a part of the record on appeal, the following proceedings were had:
'Plaintiff's Attorney: I ask the Court to make an order in compliance with that stipulation adding an additional party plaintiff.
'Defendant's Attorney: We don't care how many you have in it, Judge.
'Plaintiff's Attorney: This is an appeal from Justice Court.
'Defendant's Attorney: We served an Answer.
'The Court: Get your pleadings and write them in, so we will have a record of them.
'Plaintiff's Attorney: The pleadings will be the same.
'The Court: Have you got your pleadings?
'Plaintiff's Attorney: You don't need pleadings in Justice Court.
'The Court: I think it would be a good idea to file your complaint and file same after we have a recess.
'Plaintiff's Attorney: It is the same thing as in the summons.
'The Court: I don't see an item of negligence alleged in the summons.
'Plaintiff's Attorney: You don't need to allege it.
'Plaintiff's Attorney: Yes, just the two of them.
'The Court: That is agreeable to both counsel, and that will be the order.
'Plaintiff's Attorney: Before a Jury is called, plaintiff moves to dismiss the appeal on the following grounds:
'First: The Court has no jurisdiction of the subject-matter of this action;
'Second: This is an appeal from the Justice Court to the District Court, and that an undertaking on appeal with sureties is a statutory requirement in order to give the Court jurisdiction over the subject-matter on an appeal;
Thereafter some discussion followed in which the court and counsel for the plaintiff and counsel for the defendant participated. In the course of such discussion defendant's counsel stated that he had personally made the deposit of $100 with the clerk of the District Court. On being asked whether he had a receipt for the money paid to the clerk, defendant's counsel stated that he thought he filed the receipt with the clerk. He further said: ...
To continue reading
Request your trial