Deardoff v. Thorstenson

• Decision Date: 16 October 1907
• Citation: 16 N.D. 355,113 N.W. 616
• Parties: DEARDOFF v. THORSTENSON.
• Court: North Dakota Supreme Court

16 N.D. 355

113 N.W. 616

DEARDOFF

v.THORSTENSON.

Supreme Court of North Dakota.

Oct. 16, 1907.

Syllabus by the Court.

In an appeal to the district court from a judgment rendered in justice's court, the filing of an undertaking with the clerk of the district court within 30 days after the rendition of the judgment is a prerequisite to the transfer of jurisdiction to the district court.

The filing of an undertaking in such cases pertains to the jurisdiction of the district court over the cause and subject-matter of the appeal and cannot be waived by consent of the appellee in submitting to the jurisdiction of the district court.

Appeal from District Court, Wells County; S. L. Glaspell, Judge.

Action by Moses Deardoff against Thorsten Thorstenson. Judgment for defendant, and plaintiff appeals. Reversed.

Plinn H. Woodward, for appellant. H. J. Bessesen, for respondent.

MORGAN, C. J.

This action was commenced in justice's court and resulted in a judgment by default in favor of the plaintiff on May 8, 1903, for the sum of $120.42, damages and costs. On June 4, 1903, the defendant served a notice of appeal, undertaking, and answer upon the plaintiff's attorney, and personal service was admitted by said attorney. The undertaking had been approved as to form and sufficiency by the clerk of the district court prior to its service on the attorney. Neither the notice of appeal, undertaking, or answer was filed in the office of the clerk of the district court until November 24, 1903. When the action was called for trial in the district court on March 17, 1904, the plaintiff moved for a dismissal of the appeal on the sole ground that the notice of appeal and undertaking were not filed in the office of the clerk of the district court within 30 days from the rendition of the judgment. This motion was denied, and the trial which followed resulted in a verdict for the defendant. The plaintiff appeals from the judgment of dismissal rendered on the verdict. The sole error specified is the refusal of the court to dismiss the appeal.

Two questions are presented for decision in the appeal: (1) Was the failure to file the notice and undertaking in the clerk's office within 30 days from the rendition of the judgment jurisdictionally fatal to the appeal? (2) If such filing is jurisdictional, was there a waiver of the failure by a submission to the jurisdiction of the district court after the papers were therein filed?

Appeals are matters of statutory regulation, and, unless the statute has been complied with, there is no appeal, unless there is a noncompliance with some requirement that can be and has been waived. The provisions of the statute in reference to appeals, so far as applicable to this case, are the following: Section 8500, Rev. Code 1905, provides that: “Any party dissatisfied with a judgment rendered in a civil action in a justice's court, whether the same was rendered on default or after a trial, may appeal therefrom to the district court * * * at any time within thirty days after the rendition of the judgment. The appeal is taken by serving the notice of appeal on the adverse party or his attorney and by filing the notice of appeal together with the undertaking required by law with the clerk of the District Court of the county in which the appeal was taken.” Section 8502, Rev. Code 1905, is as follows: “To render an appeal effectual for any purpose, an undertaking must be executed on the part of the appellant by sufficient surety to the effect that the appellant will pay all costs which may be awarded against him on the appeal, not exceeding one hundred dollars, which undertaking shall be approved by and filed in the office of the clerk of the district court of the county to which the appeal is taken.” No changes have been made in the law relating to appeals from justice's court since the cases of Richardson v. Campbell, 9 N. D. 100, 81 N. W. 31, and Eldridge v. Knight, 11 N. D. 552, 93 N. W. 860, were decided. In the first-named case it was decided that the service of the undertaking on appeal was an essential prerequisite to the transfer of jurisdiction from justice's court to the district court. In the last case, it was decided that service of the undertaking is to be made before approval and filing. In the last case it was also in effect held that service, approval, and filing in the clerk's office must be made within 30 days after judgment.

In the case at bar, the undertaking was approved before service or filing, but the same was not filed in the clerk's office within the statutory time. Did the failure to file the notice and undertaking within 30 days deprive the district court of jurisdiction? We think it did. The language of section 8500 is plain and unambiguous. It specifies that the appeal is taken by serving the notice and by filing the same...