City of Bismarck v. Walker

• Decision Date: 02 July 1981
• Docket Number: No. 9916,9916
• Parties: CITY OF BISMARCK, Plaintiff and Appellee, v. Dwayne WALKER, Respondent and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 359

308 N.W.2d 359

CITY OF BISMARCK, Plaintiff and Appellee, v. Dwayne WALKER, Respondent and Appellant.

Civ. No. 9916.

Supreme Court of North Dakota.

July 2, 1981.

Frederick E. Saefke, Jr., Bismarck, for plaintiff and appellee; appeared, but did not file a brief or argue.

Bickle, Coles & Snyder, Bismarck, for respondent and appellant; argued by Robert J. Snyder, Bismarck.

SAND, Justice.

On 10 April 1979 a Bismarck police officer cited Dwayne Walker, the defendant-appellant for traveling 43 miles per hour in a 25 mile an hour zone. A trial was held on 3 June 1980 before the Honorable Keith Wolberg, Bismarck municipal judge. Both sides presented evidence pertaining to a particular radar unit in question. After trial, the municipal judge took the matter under advisement and indicated a written opinion would be furnished in the near future. A memorandum opinion and an order finding Walker guilty was issued on 16 June 1980.

Walker filed an appeal on 27 June 1980 with the Burleigh County court with increased jurisdiction ¹ for a trial anew by jury, but no copy of the notice of appeal was served upon the city attorney of Bismarck. On 2 Sept. 1980 the City of Bismarck moved to dismiss the appeal on the grounds that the Burleigh County court with increased jurisdiction did not acquire jurisdiction because the notice of appeal was not served upon the city attorney as provided for in North Dakota Century Code § 39-06.1-03(5)(a). The affidavit in support of the motion stated that the city attorney representing the city in the above entitled action first became knowledgeable of any appeal in the instant case "when his office was called by the clerk of the county court during the third week of August 1980 and told that the case had been scheduled for trial"; that he sought information from the clerk of the municipal court and then received a copy of the notice of appeal, and that no notice of appeal was served upon the city attorney as required by NDCC § 39-06.1-03(5) and that no oral notice of appeal was entered in this case. The motion to dismiss and affidavit in support of the motion was served upon Walker on 3 Sept. 1980 at approximately 1:20 p. m. Walker filed a return. A hearing on the motion to dismiss was held on 15 Sept. 1980 and a memorandum opinion and order dismissing the appeal was issued on 20 Oct. 1980. Walker, on 5 Dec. 1980, filed a notice of appeal to this Court with the Burleigh County court with increased jurisdiction.

One of the issues raised is whether or not failure to serve a written notice of the appeal on the city attorney as provided for in NDCC § 39-06.1-03(5)(a) is jurisdictional.

The specific statute authorizing appeals is § 39-06.1-03(5)(a) and, as is pertinent to the issue in this matter, provides in part as follows:

"If a person is aggrieved by a finding that he committed the violation, he may, without payment of a filing fee, appeal that finding to the district court for trial anew, and the case may be tried to a jury, if requested. If, after trial in the district court, the person is again found to have committed the violation, there shall be no further appeal. Notice of appeal under this subsection shall be given within thirty days after a finding of commission of a violation is entered by the official. Oral notice of appeal may be given to the official at the time that he adjudges that a violation has been committed. Otherwise, notice of appeal shall be in writing and filed with the official, and a copy of the notice shall be served upon the city attorney or state's attorney, as the case may be." (Underscoring ours.)

Section 39-06.1-03(7), NDCC, defines "official" as follows:

"As used in sections 39-06.1-02, 39-06.1-03, and 39-06.1-04, the word 'official' means a district judge, a judge of the county court with increased jurisdiction, a county justice, a municipal judge, or, when provided by statute, a person appointed by a district judge to serve as such official for all or a specified part of a judicial district." ²

Appellate jurisdiction is derived from the constitutional or statutory provisions by which it is created and can be acquired and exercised only in the manner prescribed. Bryan v. Miller, 73 N.D. 487, 16 N.W.2d 275 (1944); 4 Am.Jur.2d Appeal and Error § 4, page 535; see also, 4A C.J.S. Appeal and Error § 425, pages 65-68. The right of appeal in this state is statutory. Huso v. Bismarck Public School Board, 219 N.W.2d 100 (N.D.1974); Hansen v. Dennis, 232 N.W.2d 49 (N.D.1975). One attempting an appeal must show his right thereto. Helland v. Jones, 76 N.D. 511, 37 N.W.2d 513 (1949). While the right of appeal is determined by statute, the Supreme Court has authority to promulgate rules of procedure, including appellate procedures to be followed in all courts of this state. Art. VI § 3, N.D.Const.

The North Dakota Supreme Court adopted rules for appellate procedure for appeals to the Supreme Court from district courts and county courts with increased jurisdiction. These appellate rules of procedure do not apply to appeals from municipal courts to the district court or county courts with increased jurisdiction, or to appeals from county court to the district court. In this respect Walker's attorney, on the motion to dismiss the appeal before the county court of increased jurisdiction stated: "To tell you the truth, your Honor, I don't think the rules of appellate procedure pertain in this case. They specifically refer to the Supreme Court under Rule 3(d) so I think the Rules of Appellate Procedure really are not applicable here." However, counsel, in oral argument and in his brief before this Court, urged that case law construing the appellate rules be applied to this situation. This concept will be discussed infra.

In Krueger v. Hayko, 87 N.W.2d 539 (N.D.1958), this Court said that while notice of appeal was served on opposing party within the statutory time, the defendant failed to file his notice of appeal in the office of the clerk of the district court in which the judgment from which he sought to appeal was entered, as required by statute, until after the statutory time had expired, and therefore the Supreme Court had no jurisdiction in the case. While this statement in Krueger involved an appeal to the Supreme Court, nevertheless the concept and rule of law, as well as the rationale of the opinion that statutory requirements must be fully met, applies to other appeals such as an appeal from a municipal court to a county court with increased jurisdiction. It is simply a jurisdictional necessity that he who seeks an appeal must satisfy the statutory mandates. In the instant case more than thirty days had elapsed by the time the city attorney became aware that an appeal had been filed.

The Bryan v. Miller, supra, case, however, stands for the proposition that an appeal to a district court for a trial anew is treated in a somewhat different light than an appeal on the record to another court. In Bryan an action to recover damages resulting from an automobile collision, the defendant defaulted and the plaintiff recovered judgment. The defendant served a notice of appeal, a verified answer, and "an undertaking on appeal" upon the attorney for the plaintiff. These papers were filed with the clerk of the district court on the same day, and the undertaking consisted of the following: "In lieu of surety on this undertaking the said Abe Miller is depositing the sum of $100.00 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 case came on for a hearing 12 Feb. 1954 and some proceedings similar to a pretrial hearing were held involving the pleadings, answers, and allegations. Before the jury was called the plaintiff moved to dismiss the appeal on the grounds that the court had no jurisdiction of the subject matter because the undertaking on appeal with sureties, a statutory requirement, had not been satisfied. It was contended that "Miller is depositing the sum of $100.00 in cash" is not the same as having deposited the sum or its equivalent.

After argument on the motion to dismiss and deliberation, the district court granted the motion to dismiss the appeal. The order granting the motion to dismiss was appealed to the Supreme Court. The Supreme Court observed that the appellant had not totally failed to serve and file the appeal papers within the time prescribed by statute, nor did the appellant evade the requirements of giving certain security for the payment of the costs of appeal in the event the appellant does not prevail. The appellee contended that the surety was not adequate nor in compliance with the statute, but the Supreme Court declined to rule on that specific question.

The Supreme Court, in effect, held that the proceedings had in the district operated to vest the district court with jurisdiction of the controversy without regard to the validity of the appeal. It reasoned that while jurisdiction on the subject matter may not be conferred on the court by the parties, the district court had original jurisdiction of the subject matter as provided for in the Constitution and the parties by making a general appearance submitted to the jurisdiction of the Court. The Supreme Court noted that a party who invokes the jurisdiction of a court cannot later terminate it capriciously. The Supreme Court reversed the dismissal of the appeal and remanded the case to the district court for proper proceedings.

Even if we were to apply the rule of law announced in Bryan v. Miller, supra, to the instant case, it would still not require a reversal of the order to dismiss the appeal because in this instance the city of Bismarck made a special rather than a general appearance before the county court with increased jurisdiction. The special appearance of the city of Bismarck was to present and argue the motion to dismiss the appeal on the grounds that the appeal did...