Dehn v. Otter Tail Power Co., 9275
| Decision Date | 31 December 1976 |
| Docket Number | No. 9275,9275 |
| Parties | Bret O. DEHN, Plaintiff and Appellee, v. OTTER TAIL POWER COMPANY and Ervin Sahr, Defendants and Appellants. Civ. |
| Court | North Dakota Supreme Court |
Syllabus by the Court
For the reasons stated in the opinion, the motion in the Supreme Court to dismiss the appeal is denied and the case is remanded to the trial court so it may determine whether the failure to file the notice of appeal with the clerk of the district court was due to excusable neglect under Rule 4(a) of the North Dakota Rules of Appellate Procedure.
Tenneson, Serkland, Lundberg & Erickson, Fargo, for plaintiff and appellee; appearances by C. J. Serkland and Ronald H. McLean, Fargo, argued by C. J. Serkland, Fargo.
Nilles, Hansen, Selbo, Magill & Davies, Fargo, for defendants and appellants; appearances by Frank J. Magill and John E. Rowell, Fargo, argued by John E. Rowell, Fargo.
Pending before us is a motion filed with our clerk of court on October 14, 1976, to dismiss the appeal of the defendants, Otter Tail Power Company and Ervin Sahr, from the orders of the district court, third judicial district, Ransom County, denying defendants' motion for judgment notwithstanding the verdict, or, in the alternative, for a new trial, and denying defendants' motion to amend judgment, all of which orders were filed on the 23rd day of June, 1976.
On October 22, 1976, the defendants filed a motion with our court to stay proceedings on the plaintiff's motion to dismiss the appeal on the ground that they had moved the district court to extend the time for filing the notice of appeal by two days. Thereafter, the trial court heard the motion to extend the time for filing the notice of appeal and apparently declined to render a decision on that motion until such time as this court has rendered a decision on the motion to dismiss the appeal. Our court has now heard the oral arguments on the motion to dismiss the appeal and it is that motion which we must now decide.
Hereafter, for the sake of brevity and, hopefully, clarity, we shall refer to the defendants as Otter Tail and the plaintiff as Dehn.
The facts are that the clerk of the district court did not receive the notice of appeal in this case until the sixty-second day following the filing of the orders from which appeal is taken. On June 23, 1976, Dehn personally served upon one of the attorneys for Otter Tail, notice of the entry of the orders denying the motions described in the first paragraph of this opinion. On August 24, 1976, Otter Tail filed with the clerk of district court of Ransom County, a notice of appeal. Otter Tail had not sought or received from the district court, an extension of time to file the notice of appeal. August 24 is 62 days after June 23 and does not follow a Saturday, Sunday, or legal holiday, nor is August 24 a Saturday, Sunday, or legal holiday.
It is asserted by Dehn that the notice of appeal was therefore filed late and that the appeal should be dismissed for failure to comply with the requirements of Rule 4(a) of the North Dakota Rules of Appellate Procedure.
That Rule reads:
'The running of the time for filing a notice of appeal is terminated as to all parties by a timely motion filed in the trial court by any party pursuant to the North Dakota Rules of Civil Procedure hereafter enumerated in this sentence, and the full time for appeal fixed by this subdivision commences to run and is to be computed from service of notice of the entry of any of the following orders made upon a timely motion under such rules: (1) granting or denying a motion for judgment under Rule 50(b); (2) granting or denying a motion under Rule 52(b) to amend or make additional findings of fact, whether or not an alteration of the judgment would be required if the motion is granted; (3) granting or denying a motion under Rule 59 to alter or amend the judgment; or (4) denying a motion for a new trial under Rule 59.
Dehn asserts that the 60 day limit set for appeal was jurisdictional and mandatory and that, as the notice of appeal was not filed with the clerk of the district court until 62 days after the service of notice of entry of the orders appealed from, the appeal must be dismissed.
In addition to numerous federal court decisions, Dehn cites a number of decisions rendered by this court which construed the statute in effect prior 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 contentions.
In an affidavit filed with this court in resistance to the motion to dismiss the appeal, Mr. John E. Rowell, who is the lawyer in the law firm of Nilles, Hansen, Selbo, Magill & Davies, Ltd., who prepared the notice of appeal and mailed it on the 60th day, indicated that he was misled by a provision in Rule 25, N.D.R.App.P., which permits filing by mail.
Rule 25(a) seems to relate only to the filing of papers with the clerk of the supreme court as distinguished from the requirement in Rule 4(a) which speaks of filing the notice of appeal with the clerk of the trial court. In any case, it is significant to note that the second sentence of that Rule, states that filing shall not be timely unless the papers are received by the clerk within the time fixed for filing, except in the case of briefs and appendices which shall be deemed filed on the day of mailing if the most expeditious form of delivery by mail is utilized. The pertinent part of Rule 25(a) follows:
An affidavit filed by Mr. Frank Magill, as a partner and president of the law firm representing Otter Tail Power Company in this matter, indicates that Mr. Magill was very busy after returning from vacation with his duties as a partner and as the president of the law firm, and that, in addition thereto, he was occupied very greatly outside of his law office as the result of a death in his family.
Counsel for Otter Tail argue that the motion to dismiss the appeal should be denied so that they may argue the issue of excusable neglect under Rule 4(a) before the trial court, notwithstanding that they failed to make the motion before the expiration of the additional 30 day period.
They rely upon the third paragraph of Rule 4(a) quoted above.
Otter Tail asserts that anything which this court said to the contrary in Cottle was mere Obiter dictum and therefore should be ignored, that in any case Cottle is distinguishable from the instant case; and that the circuit courts of the United States, with the exception of the Eighth Circuit Court of Appeals, have construed the Federal Rule, which is similar to our Rule, to the effect that application need not be made for an extension of the time within which to file a notice of appeal prior to the expiration of the second 30 day period.
In essence, they assert that the overwhelming weight modern federal authority supports the proposition that if the notice of appeal is filed more than 60 days, but less than 90 days, after the entry of the judgment or order appealed from, the district court may at any time consider a motion to validate the filing within the final 30 day period for excusable neglect. In support thereof, counsel cite the following authority:
Salazar v. San Francisco Bay Area Rapid Transit District, 538 F.2d 269 (9th Cir. 1976); Lashley v. Ford Motor Company, 518 F.2d 749 (5th Cir. 1975); Stirling v Chemical Bank, 511 F.2d 1030 (2d Cir. 1975); Alley v. Dodge Hotel (163 U.S.app.D.C. 320) 501 F.2d 880 (D.C. Cir. 1974); Cramer v. Wise, 494 F.2d 1185 (5th Cir. 1974); Torockio v. Chamberlain Manufacturing Company, 456 F.2d 1084 (3d Cir. 1972); Evans v. Jones, 366 F.2d 772 (4th Cir. 1966); See also Brainerd v. Beal, 498 F.2d 901 (7th Cir. 1974); Pasquale v. Finch, 418 F.2d 627 (1st Cir. 1969); Reed v. People of State of Michigan, 398 F.2d 800 (6th Cir. 1968); C--Thru Products, Inc. v. Uniflex, Inc., 397 F.2d 952 (2d Cir. 1968).
Otter Tail especially stresses the language in Stirling, a decison rendered by the Second Circuit Court of Appeals, construing the Federal Rule as follows:
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