Cottle v. Kranz
| Decision Date | 24 June 1975 |
| Docket Number | No. 9106,9106 |
| Parties | Fred COTTLE and Norman Haines, Plaintiffs-Appellees, v. Paul KRANZ and Walter Kranz, Defendants, and Curtis Kranz, Defendant-Appellant. Civ. |
| Court | North Dakota Supreme Court |
Syllabus by the Court
The time prescribed by Rule 4(a), N.D.R.App.P., within which an appeal may be taken from a judgment is mandatory and jurisdictional, and where an appeal from a judgment is not taken within the prescribed period the Supreme Court is without power to do more than dismiss the appeal.
Joseph P. Stevens, Minot, for defendants-appellants.
John L. Sherman, Mackoff, Kellogg, Kirby & Kloster, Dickinson, Reichert, Howe & Hardy, Dickinson, for plaintiffs-appellees.
Fred Cottle and Norman Haines commenced an action in McLean County District Court against the defendants Paul Kranz, Walter Kranz, and Curtis Kranz. The defendant Walter Kranz interposed a separate answer; and the defendant Paul Kranz interposed a separate answer and counterclaim, as did the defendant Curtis Kranz. A nonjury trial was held and thereafter a judgment was awarded to the plaintiffs and against the defendant Curtis Kranz in the sum of $3,106.64 and against the defendant Paul Kranz in the sum of $728.00. The judgment also provided for a dismissal of the counterclaims of Paul Kranz and Curtis Kranz. The action against Walter Kranz was dismissed. Curtis Kranz is the only defendant who attempted to appeal from the judgment of the district court, which judgment was entered on January 8, 1975. Notice of entry of judgment, which was dated January 6, 1975, was served by mail upon counsel for the defendants as of the same date. Thereafter, the notice of appeal, which was dated March 6, 1975, was not filed wiht the clerk of the McLean County District Court until March 19, 1975. No affidavit of mailing or other evidence of mailing the notice of appeal to the clerk of court is a part of the record.
The appellees have moved this court to dismiss this appeal upon the grouns that the appellant failed to comply with the provisions of Rule 4(a) of the North Dakota Rules of Appellate Procedure in that the notice of appeal was not filed within sixty days from the date of service of notice of entry of judgment; no application and order extending the time for filing was entered; and no notice of appeal was ever served upon counsel for appellees or any of them. The appellees further urge that the appellant did not comply with §§ 28--27--05 and 28--27--04, of the North Dakota Century Code, which sections respectively set forth the manner of taking an appeal and the time in which an appeal from a judgment may be taken.
This court adopted the Rules of Appellate Procedure, which became effective on March 1, 1973. Rules 3 and 4, N.D.R.App.P., as promulgated, set forth, substantially, the method and time of appeal contained in §§ 28--27--05 and 28--27--04, N.D.C.C. Rules 3 and 4, N.D.R.App.P., superseded §§ 28--27--05 and 28--27--04 by virtue of § 27--02--09, N.D.C.C., as well as Rule 49(b), N.D.R.App.P. The pertinent parts of Rules 3 and 4, N.D.R.App.P., are as follows:
Rule 3--Appeal as of Right--How Taken
The appellees urge that the appeal should be dismissed because the appellant did not file his notice of appeal within the sixty-day period prescribed by Rule 4(a). The appellees further urge that the record does not reveal that any notice of appeal was ever served upon either of them, by mail or otherwise; nor is there in the record any application and order by the district court extending the time for filing for a period not to exceed thirty days from the expiration of the time otherwise prescribed by Rule 4(a).
Neither of the parties to the appeal assert that any post-decisional motions were made, as set forth in Rule 4(a). Appellees cite in support of their argument a recent decision of this court, Farmers Union Grain Terminal Ass'n v. Briese, 192 N.W.2d 170 (N.D.1971), and 9 Moore, Federal Practice (2d ed.) 204.02. While Farmers Union Grain Terminal Ass'n v. Briese was decided prior to the effective date of the North Dakota Rules of Appellate Procedure (March 1, 1973), this court held, in Briese, in paragraph 1 of the syllabus:
'The time prescribed by Section 28--27--04, N.D.C.C., within which an...
To continue reading
Request your trial
-
State v. Metzner
...rule that an appellate court has no jurisdiction to hear an appeal where the notice of appeal is not timely filed. See Cottle v. Kranz, 231 N.W.2d 777 (N.D.1975).3 In Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949), the United States Supreme Court held that the Fourth Ame......
-
Schroeder v. Burleigh County Bd. of Com'rs
...851, 854 (N.D.1976), and State v. Stokes, 240 N.W.2d 867, 869 (N.D.1976), we applied Rule 49(b), N.D.R.App.P. See also, Cottle v. Kranz, 231 N.W.2d 777, 778 (N.D.1975). We do not agree with the Schroeders' contention that when they complied with § 11-11-41, NDCC, in serving the notice of ap......
-
Dehn v. Otter Tail Power Co., 9275
...to the adoption of the North Dakota Rules of Appellate Procedure which became effective March 1, 1973, and the decision of Cottle v. Kranz, 231 N.W.2d 777 (N.D.1975) as authority for its In an affidavit filed with this court in resistance to the motion to dismiss the appeal, Mr. John E. Row......
-
Production Credit Ass'n of Minot v. Burk, 880022
...Rules of Appellate Procedure is mandatory and jurisdictional. Dehn v. Otter Tail Power Co., 248 N.W.2d 851 (N.D.1976); Cottle v. Kranz, 231 N.W.2d 777 (N.D.1975). If an appeal is not taken within the prescribed time, we are without power to do more than dismiss the appeal. Cottle v. Kranz, ......