City of Minot v. Lundt
Decision Date | 13 July 1978 |
Docket Number | Cr. N |
Citation | 268 N.W.2d 482 |
Parties | CITY OF MINOT, Plaintiff Appellee, v. Ernest C. LUNDT, Defendant Appellant. o. 642. |
Court | North Dakota Supreme Court |
Ernest C. Lundt, pro se (made no appearance).
Eaton & Van de Streek, Minot, for plaintiff and appellee; argued by Nevin Van de Streek, Minot.
The defendant, Ernest C. Lundt (hereinafter Lundt), was arrested on August 28, 1974, on a charge of petit larceny pursuant to an ordinance of the City of Minot. A complaint was issued on September 24, 1975, and was duly docketed in Minot Municipal Court. A trial was held before the municipal judge on the same date and at the conclusion of the hearing Lundt was found guilty and fined $50.00.
Lundt appealed on a timely basis from the judgment of conviction to the Ward County District Court. Lundt was notified of the date of trial which was originally set for April 24, 1975. The trial was then rescheduled to April 29, 1975, because of the judge's illness. Lundt was notified by the sheriff of Mountrail county (the county of Lundt's residence) and also was orally advised of the change in the trial date by the city prosecutor when Lundt appeared at the prosecutor's office on April 24, 1975. The prosecutor also confirmed the oral notice by letter dated April 25, 1975, directed to Lundt.
On April 29, 1975, at 9:30 a. m., the district judge called the case of City of Minot v. Lundt for trial. Present at that time were the deputy clerk of the district court of Ward County, the Minot city prosecutor, two complaining witnesses and their personal attorney. After waiting for 25 minutes for the appearance of Lundt (who failed to appear), the judge directed the deputy clerk of the court to enter a minute order of dismissal. In addition, the judge prepared a written order of dismissal which was dated and filed in Ward County District Court on April 29, 1975. The order of dismissal has at no time been served upon Lundt.
Since the order dismissing Lundt's appeal from the municipal court to the district court (because of Lundt's failure to appear at the trial in district court), there has been copious correspondence initiated by Lundt and directed to the Minot Municipal Court, the Ward County District Court, the presiding judge who entered the order of dismissal, and the Supreme Court. In order to finally dispose of this case, this court under date of February 17, 1978, indicated by letter to Lundt that it is the responsibility of the appellant taking an appeal to transmit the record to this court under compliance with the North Dakota Rules of Appellate Procedure which must be followed in perfecting an appeal. Lundt then in a letter dated February 22, 1978, which was directed to the clerk of Ward County District Court, stated as follows, in pertinent part:
The City of Minot (hereinafter the City) filed a motion for dismissal of Lundt's attempted appeal to the Supreme Court. The motion is based upon two grounds:
(1) That the Supreme Court does not have jurisdiction to entertain Lundt's appeal because of Lundt's failure to file a timely notice of appeal pursuant to Rule 4 of the North Dakota Rules of Appellate Procedure.
(2) That the Supreme Court does not have jurisdiction to review the propriety of the district court judge's order under its power of superintending control of inferior courts in the absence of some overt action by Lundt to make Judge Burdick a party to these proceedings in the Supreme Court.
The dispositive issue in this case is whether or not a timely notice of appeal was filed with the Supreme Court.
Rule 3(a) and 3(c), N.D.R.App.P., provides:
"APPEAL AS OF RIGHT HOW TAKEN"
Rule 4(b), N.D.R.App.P., provides, in pertinent part:
"APPEAL WHEN TAKEN
Rule 4(b) (Emphasis added.)
The City asserts that a timely notice of appeal was not filed pursuant to Rule 4(b), N.D.R.App.P., because Lundt failed to file a written notice of appeal within 10 days from the date of the entry of the order of dismissal or within the additional 30 days which may be granted by the trial court.
The City concedes that the order of dismissal was never formally served upon Lundt (the order of dismissal dated April 29, 1975). However it asserts that Lundt became aware of the order of dismissal not later than September 30, 1975, and Lundt in his letter directed to the Supreme Court of North Dakota dated September 30, 1975, stated, in pertinent part:
However, Lundt did not file a notice of appeal with the clerk of the Ward County District Court until his letter dated February 22, 1978, which was filed in the clerk's office on March 1, 1978. A perusal of the remaining correspondence by Lundt with the Supreme Court cannot be equated to or considered as constituting a notice of appeal. Lundt's correspondence other than his letter of February 22, 1978, fails to meet the...
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...to seek review ... was manifest." Foman v. Davis, 371 U.S. 178, 181, 83 S.Ct. 227, 229, 9 L.Ed.2d 222 (1962). Cf., City of Minot v. Lundt, 268 N.W.2d 482, 485 (N.D.1978) ("There is nothing in the record showing that Lundt communicated to the district court within the time requirements set f......
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City of Bismarck v. Altevogt, Cr. N
...it can be shown that the failure to file was excusable neglect, or that the time was extended by the trial court. City of Minot v. Lundt, 268 N.W.2d 482 (N.D.1978)." The probability of inadvertent failure by a defendant to timely file the notice of appeal in a criminal case is reduced by th......
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State v. Lesmeister, 704-A
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