C. & M., Inc. v. Northern Founders Ins. Co. of N. D.

• Decision Date: 07 November 1963
• Docket Number: No. 8055,8055
• Citation: 124 N.W.2d 471
• Court: North Dakota Supreme Court
• Parties: C. & M., INC., a corporation, Abner A. Moberg, Myrtle L. Moberg, and Lance Val Moberg, Plaintiffs and Respondents, v. The NORTHERN FOUNDERS INSURANCE COMPANY OF NORTH DAKOTA, a corporation, and Northern Securities Company, a corporation, Defendants, Northern Securities Company, a corporation, Defendant and Appellant.

Page 471

124 N.W.2d 471

C. & M., INC., a corporation, Abner A. Moberg, Myrtle L Moberg, and Lance Val Moberg, Plaintiffs and Respondents, v. The NORTHERN FOUNDERS INSURANCE COMPANY OF NORTH DAKOTA, a corporation, and Northern Securities Company, a corporation, Defendants Northern Securities Company, a corporation, Defendant and Appellant.

No. 8055.

Supreme Court of North Dakota.

Nov. 7, 1963.

Syllabus by the Court

1. The times prescribed by Section 28-27-04, NDCC, within which certain appeals may be taken are mandatory and jurisdictional, and where an appeal has not been taken within the statutory period the Supreme Court is without power to do more than dismiss the appeal and the time cannot be extended by the Court unless power to do so is expressly given by statute.

2. Where a moving party whose motion is denied procures a written order to be signed denying the motion, he has notice of the order, his time for appeal therefrom starts to run when the order is signed, and the order becomes final sixty days thereafter.

3. Where no appeal has been taken, within the time prescribed by law, from an order denying a motion for judgment not withstanding the verdict, the order becomes final as to all issues properly presented by the motion and such issues cannot be raised in the Supreme Court on a subsequent appeal from the judgment.

4. Where the final character of a judgment has been suspended by a motion for new trial, noticed for hearing prior to the time for appeal has expired, the statutory time within which an appeal must be taken from the judgment is neither extended nor the running thereof suspended.

Wattam, Vogel, Vogel, Bright & Peterson, Fargo, for plaintiffs and respondents.

Thompson, Lundberg & Rosenberg, Bismarck, for defendant and appellant.

MORRIS, Chief Justice.

This matter comes before us on a motion by the plaintiffs and respondents to dismiss the appeal to this Court.

The notice of appeal, which was served on respondents' attorneys on August 9, 1962, by the Northern Securities Company and filed in the office of the clerk of the district court on September 4, 1962, recites that the Northern Securities Company

'* * * hereby appeals to the Supreme Court of the State of North Dakota, from that certain order dated the 29th day of April, 1960, denying defendant's motion for judgment notwithstanding the verdict and from that certain judgment entered and docketed in the above entitled action on the 5th day of November, 1959, which judgment was a money judgment in the total sum of $7,401.55 and the said defendant appeals from the whole of said order and from said judgment.'

The record shows that the order of April 29, 1960, referred to in the notice of appeal, was served by mail by the attorneys for the Northern Securities Company on the attorneys for the plaintiffs and respondents on April 29, 1960, the date on which the order was issued. It had been made pursuant to and after a hearing on a motion by the Northern Securities Company in the alternative for a judgment notwithstanding the verdict or for a new trial. The court denied the motion for judgment notwithstanding the verdict and granted the motion for a new trial. The order recites:

'IT IS ORDERED that the motion of the Defendant, Northern Securities Company, a corporation, for Judgment Notwithstanding the Verdict be and is hereby denied,

'AND IT IS FURTHER ORDERED that the alternative motion of the Defendant, Northern Securities Company, a corporation, for a new trial herein be and the same is hereby granted.'

A timely appeal to this Court was taken from that part of the order granting the new trial by the plaintiffs C. & M., Inc., Abner A. Moberg, Myrtle L. Moberg, and Lance Val Moberg. On that appeal the order granting a new trial was reversed. C. & M., Inc., v. Northern Founders Insurance Company of North Dakota, N.D., 112 N.W.2d 827. About March 7, 1962, judgment was entered in the district court pursuant to our remittitur, which judgment provided:

'* * * it is ORDERED, ADJUDGED AND DECREED that the Order entered in the above action on the 29th day of April, 1960, granting the defendant, Northern Securities Company, motion for new trial be, and the same is hereby reversed and the judgment in favor of the plaintiffs and against the defendant, Northern Securities Company, heretofore entered in the action is hereby affirmed.'

Reference to the notice of appeal in this case discloses that this appeal was not attempted to be taken until over five months after the entry of judgment on the remittitur pursuant to our opinion reversing the order granting the new trial.

An appeal from a judgment may be taken within six months after entry by default, and in case the party against whom it is entered appeared in the action six months from written notice of entry of judgment, an appeal may be taken from an order within sixty days after written notice of the same has been given to the party appealing. Section 28-27-04, NDCC.

It has long been the rule of this Court that the statute is mandatory and jurisdictional, and where an appeal has not been taken within the statutory period this Court is without power to do more than dismiss the appeal and the time cannot be extended by the Court unless the power to do so is expressly given by statute. Stierlen v. Stierlen, 8 N.D. 297, 78 N.W. 990; Nevland v. Njust, 78 N.D. 747, 51 N.W.2d 845.

The notice of entry of judgment was served November 5, 1959, the date on which the judgment was entered. The time for appeal from the judgment expired six months later.

Ordinarily the time within which an appeal may be taken from an appealable order does not commence to run until...