Burger v. Sinclair

• Decision Date: 07 January 1913
• Citation: 24 N.D. 326,140 N.W. 235
• Parties: BURGER v. SINCLAIR.
• Court: North Dakota Supreme Court

24 N.D. 326

140 N.W. 235

BURGER

v.SINCLAIR.

Supreme Court of North Dakota.

Nov. 20, 1912.

Rehearing Denied Jan. 7, 1913.

Syllabus by the Court.

An undertaking for the payment of costs on appeal to the Supreme Court which is not conditioned as prescribed by section 7208, R. C. 1905, to the effect that the appellant will pay all costs and damages which may be awarded against him on the appeal, is defective, and, unless such defect is cured, the appeal will be dismissed.

Such undertaking is also defective where the affidavit of justification of the sureties fails to state that such sureties are worth the sum stated therein over and above their debts and liabilities “in property within this state not by law exempt from execution,” as prescribed in section 7221, R. C.

Where it appears that notice of appeal was given in good faith, and that such defects in the undertaking on appeal were occasioned through mistake or accident, the appellant will be given leave to supply such defects pursuant to the provisions of section 7224, R. C., even though the time for appealing has expired.

A failure to file abstracts and briefs in this court at least 25 days prior to the next regular term thereof constitutes ground for dismissal of the appeal within the sound discretion of the court; but where it appears, as in the case at bar, that the appellant has proceeded in good faith and with due diligence and has shown facts excusing such default, a motion to dismiss will be denied.

An appellant who intentionally omits to give an undertaking to stay proceedings during an appeal from a judgment for money only cannot be afforded relief under the provisions of section 7224, R. C., and an order made by a member of this court permitting the filing of an undertaking is held to have been improvidently made, and the respondent is entitled to have the same vacated.

In the light of the plain provisions of our appeal statute providing for and regulating the giving of undertakings to stay proceedings on appeal, held, that this court does not possess any inherent power to grant a supersedeas under the facts disclosed in the case at bar.

Action by E. C. Burger against William Sinclair. From a judgment for plaintiff, defendant appeals. Motions by respondent to dismiss the appeal and to vacate an order by a judge of the Supreme Court permitting a supersedeas undertaking to be given. First motion denied on condition, and second motion granted.

See, also, 140 N. W. 231.Knauf & Knauf, of Jamestown, for appellant. Carr & Kneeland and S. E. Ellsworth, all of Jamestown, for respondent.

FISK, J.

Respondent moves to dismiss the appeal herein upon the grounds: (1) That the undertaking for costs which was served and filed with the notice of appeal on March 27th last is not conditioned as provided by statute for the payment by appellant of all costs and damages which may be awarded against him on the appeal, not exceeding $250; (2) that such alleged undertaking does not contain a justification of the sureties, to the effect that they are worth the certain sum mentioned in their affidavit of justification over and above their debts and liabilities “in property within this state not by law exempt from execution”; and (3) that appellant has failed to file abstracts and briefs on such appeal at least 25 days prior to the October term of this court pursuant to statute and rule 22 of this court (91 N. W. xi). Notice of such motion was not served on appellant's counsel until September 23d, and the motion was noticed for the first day of the present October term.

[1][2] The undertaking is concededly defective as to the justification of the sureties, and we think it also defective in the particular pointed out in the first ground of respondent's motion.

[3] Appellant, however, makes a counter motion for leave to amend or supply a new undertaking. This is resisted by respondent, his contention, in brief, being that such undertaking was and is ineffectual to confer any jurisdiction on this court over such appeal, and that, the time for appeal having expired, this court is powerless to grant appellant any relief under section 7224, R. C. Respondent relies upon the cases of Aldrich v. Public Opinion Publishing Co., 27 S. D. 589, 132 N. W. 278,Drinkwine v. City of Eau Claire, 83 Wis. 428, 53 N. W. 673,State v. Monroe, 37 La. Ann. 113, and Thompson v. Thompson, 24 Wis. 515. To the extent that the South Dakota court in the Aldrich Case holds that no jurisdiction is conferred by the attempted appeal sufficient to enable the Supreme Court to permit an amendment of or the giving of a new undertaking in lieu of the defective one, we think the decision is both unsound and contrary to the great weight of authority under statutes substantially like that in South Dakota. It is held, in effect, by the majority opinion that the jurisdiction to permit such amendments or the giving of new bonds is derived from the statute conferring the power of amendments, and not from the attempted appeal; the line of reasoning being that because section 445 of the South Dakota Code of Civil Procedure provides that “to render an appeal effectual for any purpose and undertaking must be executed on the part of the appellant,” etc., a failure to comply therewith confers no jurisdiction, even for the purpose of permitting an amendment under section 461 of their Code. Among other things, it is there said: “If it [the Legislature] had assumed that jurisdiction was acquired by the giving of notice of appeal, it would follow as a necessary consequence that, after the giving of such notice, the circuit court would cease to have jurisdiction of the case, and it is inconceivable to suppose that the Legislature would confer upon the circuit court or judge power to relieve parties from default in cases over which they had lost jurisdiction and jurisdiction had vested in the appellate court, and by the same section, confer the same power upon the Supreme Court by virtue of its jurisdiction of the cause upon appeal.” The fallacy of such reasoning is apparent, for it is elementary that, after an appeal is taken and perfected, the lower court retains jurisdiction to take any step necessary in furtherance of the appeal; and, were this not so, it is perfectly clear that the Legislature would have the power by express statute to confer such jurisdiction. Jurisdiction to hear and determine the cause by the appellate court is one thing, while jurisdiction sufficient to enable the appellate court to permit amendments or the necessary acts to be done in order to complete its jurisdiction over the cause on appeal is quite another thing, and such distinction is clearly made by the Supreme Court of Wisconsin in construing the statute from which both the statutes of South and North Dakota were borrowed. In Harrigan v. Gilchrist, 121 Wis. 127, it was said at page 212, 99 N. W. 909, at page 928, of the opinion: “Next it is contended on the part of respondents' counsel that though the notice of appeal was served as required by section 3049, and the record transmitted to this court, no jurisdiction was obtained here for any purpose whatever, and that the defect is not remediable. On the other hand, appellants' counsel just as confidently contend that the failure to execute the bonds required, or to serve the same as the statute provides, does not militate against jurisdiction having been conferred here for some purposes, citing in support of that Helden v. Helden, 9 Wis. 557;Russel v. Bartlett, 9 Wis. 556;Smith v. C. & N. W. R. Co., 19 Wis. 89;White v. Polleys, 20 Wis. 503, 91 Am. Dec. 432;Grant v. Connecticut M. L. Ins. Co., 28 Wis. 387;Branger v. Buttrick, 30 Wis. 153;Ulrich v. Farrington Mfg. Co., 69 Wis. 213, 34 N. W. 89. The effect of those cases is that the mere taking of an appeal by the service of a proper notice and sending the record here does not give the court such jurisdiction as to enable it to hear the cause, but does give it the necessary jurisdiction to enable it to permit the appeal to be perfected by the service of a proper bond, or cure any other defect in the proceedings within the period limited by statute for appealing; and that if the proper undertaking is executed and filed, but not properly served, the court acquires such jurisdiction as to enable it to hear and decide the cause, the adverse party not seasonably objecting, failure in that regard being deemed a waiver of such service or an estoppel as regards suggesting such failure with effect. In that the court, as will be seen, gave force to the statute in all substantial essentials. Section 3052 says that: ‘To render an appeal effectual for any purpose an undertaking must be executed,’ etc. That suggests at once that an appeal may have an existence before the execution of the undertaking, though not for all purposes. The term ‘any purpose’ clearly includes the duty of the clerk below to certify up the record, and proceedings here as regards a hearing of the cause. The clerk has no right to act in the matter till he can accompany the papers with some semblance, at least, of a proper undertaking under section 3052. That is the effect of section 3050. That the former section means as indicated must be the case to render it harmonious with section 3049, to the effect that any appeal will be deemed ‘taken by the service of the notice of appeal and perfected on the service of the undertaking for costs, or the deposit of money instead, or the waiver thereof as hereinafter prescribed.’ The waiver mentioned is required to be in writing. Section 3051. Consistent with the meaning we attribute to sections 3049, 3050, and 3052, we have section 3068, providing that: ‘When a party shall in good faith give notice of appeal and shall omit, through mistake or accident, to do any other act necessary to perfect the appeal or make it effectual or to stay proceedings, the court from which the appeal is taken or the presiding judge thereof, or the Supreme...