Dietz v. Dietz

• Decision Date: 23 July 1954
• Docket Number: No. 7398,7398
• Parties: DIETZ v. DIETZ.
• Court: North Dakota Supreme Court

Page 470

65 N.W.2d 470

DIETZ v. DIETZ.

No. 7398.

Supreme Court of North Dakota.

July 23, 1954.

Rehearing Denied Aug. 25, 1954.

Syllabus by the Court.

1. Where there is more than one appeal in a single action, separate undertakings are not necessary, if the undertaking given adequately describes the matters appealed from and is in a sufficient amount to comply with the statute.

2. Where a party, against whom a judgment or order has been entered, has appeared in an action, the time to appeal from such judgment or order does not commence to run until written notice of the entry thereof has been given.

3. A judgment in a divorce action which decrees a final distribution of the property of the parties may not be modified, in so far as the property settlement is concerned, except in the manner and upon the same grounds as other judgments.

4. Where the record shows neither fraud nor duress in connection with the entry of a judgment in a divorce action decreeing a final distribution of the property of the parties, the trial court was without authority to modify such judgment.

Emil A. Giese, Carson, R. J. Bloedau, Mott, for plaintiff and appellant.

W. J. Austin, Bismarck, for defendant and respondent.

BURKE, Judge.

Here there are three appeals in one action. The plaintiff obtained a default judgment of divorce from the defendant on February 1, 1952. This judgment decreed a property settlement between the parties in accordance with the terms of their written agreement which was filed in the action. Upon the petition and affidavits of the defendant, the trial court on March 28, 1952, issued its order requiring the plaintiff to show cause why the judgment in so far as the property settlement was concerned, should not be vacated, why the contract between the parties should not be voided upon the ground of fraud and why the question of an equitable property settlement should not be adjudicated anew. After a hearing upon the order to show cause the trial court, on April 12, 1952, made its order reopening the action in so far as the property settlement was concerned upon the condition that defendant, as part of her rescission of the contract of settlement, deposit with the clerk of court, the proceeds of the settlement which she had received. Thereafter a further hearing was had and the trial court gave judgment awarding the defendant one half of the property of the parties, fixing the value of the half share at the sum of $19,140, and giving the parties time in which to agree upon a division of the property. This judgment was entered upon November 15, 1952. Thereafter on April 8, 1953, the parties having failed to agree upon a division of the property a supplemental judgment was entered decreeing a division of the property. On May 22, 1953, plaintiff took separate appeals from the order reopening the action, from the judgment entered on November 15, 1952, and from the judgment entered upon April 8, 1953.

Before reaching the merits of the case there are two motions to be considered. The first of these is defendant's motion to dismiss the appeals. The first ground urged for dismissal is that only one undertaking was filed for the three separate appeals. The undertaking is as follows:

'Undertaking on Appeal (to Supreme Court)'

'Whereas a 'Modified and Supplemental Judgment and Decree' was dated and entered in said action on November 15, 1952, and a 'Supplemental Judgment' was dated and entered in said action on April 8th, 1953, and a certain 'Order' was entered and filed in said action on April 22, 1952, and the Plaintiff feels aggrieved thereby, and intends to appeal and is taking an appeal from said Judgments and from said Order and each of them, to the Supreme Court of North Dakota, and Plaintiff intends this instrument as an undertaking for costs on such appeals as well as an undertaking to stay execution on appeal.

'Now Therefore to render such appeals effective and in force, and in order to stay the execution of said Judgments on appeal, the undersigned Reinhold Dietz as Plaintiff in said action, as Principal, and Wm. Dietz and Gottlieb Lippert as sureties, do hereby for good consideration, undertake, promise and agree to and with the Defendant and the Plaintiff-Appellant will pay to the Defendant all costs and damages which may be awarded against the Plaintiff on appeal on said appeals or a dismissal thereof, not exceeding seven-hundred-fifty dollars ($750.00), and we also further undertake promise and agree that if the judgments and order appealed from, or any part thereof, is affirmed, the Plaintiff-Appellant will pay the amount directed to be paid by the judgments, or the part of such amount as to which the said judgments or judgment shall be affirmed if it is affirmed only in part, and all damages which shall be awarded against the Plaintiff-Appellant on appeal as hereinabove set forth.

'Dated at Mott, North Dakota, this 22nd day of May, 1953.

'Reinhold Dietz, Principal,

'Wm. Dietz, Surety,

'Gottlieb Lippert, Surety.'

Section 28-2709 NDRC 1943 provides:

'To render an appeal effectual for any purpose, an undertaking must be executed on the part of the appellant by at least two sureties to the effect that appellant will pay all costs and damages which may be awarded him on appeal not exceeding two hundred fifty dollars.'

We are of the opinion that the undertaking in this case complies with the statute. All the appeals are in one action. The undertaking specifically describes the order and the two judgments from which the appeals have been taken. The condition is that the appellant will pay all costs that may be awarded in any or all the appeals in a sum not exceeding three times the amount fixed by statute for one appeal. The undertaking clearly gives the defendant all the protection contemplated by the statute.

Where there is more than one appeal in a single action, separate undertakings are not necessary if the undertaking adequately describes the matters appealed from and is in a sufficient amount to comply with the statute. Sucker State Drill Co. v. Brock, 18 N.D. 598, 120 N.W. 757.

The second ground urged for dismissal is that the appeals from the order of April 12, 1952, and from the judgment of November 15, 1952, were not timely taken.

Section 28-2704, NDRC 1943 provides:

'An appeal from a judgment may be taken within six months after the entry thereof by default or after written notice of entry thereof, in case the party against whom it is entered has appeared in the action, and from an order within sixty days after written notice of the same shall have been given to the party appealing.'

This statute is clear. Where a party has appeared in an action, the time for appeal from a judgment or order does not...