Estate of Raketti, Matter of

• Decision Date: 22 November 1983
• Docket Number: Nos. 10453,10454,s. 10453
• Citation: 340 N.W.2d 894
• Parties: In the Matter of the ESTATE OF Edna RAKETTI, Deceased. Fern M. MARTTILA, Appellee, v. Everett LEINO, Personal Representative of the Estate of Edna Raketti, Deceased, Appellant. Virginia STAVER, Appellee, v. Everett LEINO, Personal Representative of the Estate of Edna Raketti, Deceased, Appellant. Civ.
• Court: North Dakota Supreme Court

Page 894

340 N.W.2d 894

In the Matter of the ESTATE OF Edna RAKETTI, Deceased.

Fern M. MARTTILA, Appellee, v. Everett LEINO, Personal Representative of the Estate of Edna

Raketti, Deceased, Appellant.

Virginia STAVER, Appellee, v. Everett LEINO, Personal Representative of the Estate of Edna

Raketti, Deceased, Appellant.

Civ. Nos. 10453, 10454.

Supreme Court of North Dakota.

Nov. 22, 1983.

Caldis & Arneson, Grand Forks, for appellee Marttila; argued by Gordon Caldis, Grand Forks.

Constance Triplett, Grand Forks, for appellee Staver.

Vaaler, Gillig, Warcup, Woutat, Zimney and Foster, Grand Forks, for appellant; argued by Robert Vaaler, Grand Forks.

PEDERSON, Justice.

Everett Leino, personal representative of the estate of Edna Raketti, appeals from two judgments which allow claims against the estate in favor of Edna's sisters, Fern Marttila and Virginia Staver. We affirm.

MOTION TO DISMISS

Fern has moved this Court to dismiss the appeal, alleging that Everett violated the provisions of Rule 30(b), N.D.R.App.P., by failing to serve, within 10 days of filing of the transcript, a designation of parts of the record to be included in the appendix; failing to serve, within 10 days of filing of the transcript, a statement of issues to be presented for review; and failing to include in the appendix the parts of the record properly designated by Fern.

Everett's counsel admits that the designation of contents of the appendix and issues to be presented for review were served well beyond the 10-day time limit, and states that this violation of the rules was an oversight on his part. He contends, however, that Rule 30(b) does not require the appellant to include the appellee's designated parts of the record in the appendix.

Rule 30(b) clearly provides that the appellant shall include in the appendix the portions of the record designated by the appellee. Although the rule encourages agreement between the parties as to the contents of the appendix, absent such agreement the portions of the record designated by each party should be included in one appendix. ¹

Whenever either party contends that there has been unnecessary designation by the other, the court "may impose the cost of producing those parts ..." on the party that made the unnecessary designation. See Rule 30(b) N.D.R.App.P.

The rule clearly required Everett to include portions of the record designated by Fern in the appendix. Failure to comply with the Rules of Appellate Procedure, in the discretion of this Court, may be grounds for dismissal of the appeal. Rules 3(a) and 13, N.D.R.App.P. Kastrow v. Kastrow, 310 N.W.2d 573, 574 (N.D.1981); State v. Packineau, 270 N.W.2d 336, 337 (N.D.1978).

The Procedure Committee comment to Rule 13 notes that sanctions are to be applied sparingly, when necessary to protect the appellate process from abuse. See Schmidt v. Schmidt, 325 N.W.2d 230, 232 (N.D.1982); Jostad v. Jostad, 285 N.W.2d 583, 585 (N.D.1979). We have often indicated our preference to reach the merits of cases. Sanford v. Sanden, 333 N.W.2d 429, 431 (N.D.1983); Jostad v. Jostad, supra, 285 N.W.2d at 585. This is particularly true when the record and briefs on the merits We conclude that dismissal of the appeal is not warranted in this case. Everett's late designation of contents of the appendix and issues on appeal and the failure to include Fern's designated portions of the record in the appendix did not significantly delay processing of the appeal, and Fern has not demonstrated that she was prejudiced. See Haugland v. Hoyt, 267 N.W.2d 803, 805 (N.D.1978); Halverson v. Pet, Inc., supra, 260 N.W.2d at 12-13.

                have been filed and the case is ready to be heard.   Kastrow v. Kastrow, supra, 310 N.W.2d at 574;   Matter of Estates of Kjorvestad, 304 N.W.2d 83, 85 (N.D.1981);   Halverson v. Pet, Inc., 260 N.W.2d 11, 13 (N.D.1977)
                

We have repeatedly warned that all appellate rules must be complied with. Kastrow v. Kastrow, supra, 310 N.W.2d at 574; State v. Morrissey, 295 N.W.2d 305, 307 (N.D.1980). The rules must be treated respectfully, and we do not intend our admonitions to be treated as "empty noise." State v. Freed, 340 N.W.2d 172 (N.D.1983); State v. Morrissey, supra, 295 N.W.2d at 307; Jostad v. Jostad, 285 N.W.2d at 585. We have in the past assessed costs against the noncomplying party in an effort to encourage compliance with the appellate rules. State v. Morrissey, supra, 295 N.W.2d at 307; Halverson v. Pet, Inc., supra, 260 N.W.2d at 13. We therefore assess costs in the amount of $250.00 against Everett to compensate Fern for costs incurred in preparing a separate appendix. Attorneys should not anticipate that this Court will never use the most severe sanction available. See State v. Freed, supra.

MERITS

Four issues are presented on the merits of the appeal.

I

Everett first contends that the county court is without authority to enter a "judgment" in a probate proceeding, and that the court instead should have entered an "order" allowing the claim. Section 30.1-19-06(1) of the North Dakota Century Code provides, in pertinent part:

"Every claim which is disallowed, in whole or in part, by the personal representative is barred so far as not allowed unless the claimant files a petition for allowance in the court or commences a proceeding against the personal representative not later than sixty days after the mailing of the notice of disallowance or partial allowance if the notice warns the claimant of the impending bar."

A claimant whose claim has been disallowed thus has a choice between two alternate procedures: he may petition the county court for allowance of the claim or may initiate a separate action on the claim. In the instant case, Fern and Virginia petitioned the county court for allowance of their claims in the probate case pending before the court.

The county court has been granted jurisdiction over probate matters pursuant to Title 30.1. Sec. 27-07.1-17, NDCC. We have held that "jurisdiction" means the power to inquire into the facts, to apply the law, and to determine and pronounce judgment. In re Murray, 145 N.W.2d 899, 903 (N.D.1966), overruled on other grounds, Kee v. Redlin, 203 N.W.2d 423, 426 (N.D.1972); In re Edinger's Estate, 136 N.W.2d 114, 120 (N.D.1965).

We have defined "judgment" as "a judicial determination on matters submitted to a court for decision which fixes the rights and duties of the parties." Hospital Services, Inc. v. Brackey, 283 N.W.2d 174, 177 (N.D.1979); see also Cumber v. Cumber, 326 N.W.2d 194, 195 (N.D.1982). Clearly a petition for allowance of a claim against an estate is a "matter submitted to a court," and the county court makes a judicial determination which "fixes the rights and duties of the parties" when it allows or disallows the claim.

We also note that allowance of claims against estates by county courts have historically been in the form of a judgment against the estate. In In re Smith's Estate, 13 N.D. 513, 101 N.W. 890, 892 (1904), this Court stated: "When a claim is allowed by the county judge, the allowance is in the nature of a judgment against the estate, to be paid by the executor or administrator in due course of administration." In Johnson v. Rutherford, 28 N.D. 87, 147 N.W. 390, 394 (1914), the Court stated that the county court has jurisdiction over the administration of estates, including "the power to litigate the validity of claims against estates, and to enter final judgment thereon as against the estate." See also Leslie v. Minneapolis Society of Fine Arts, 259 N.W.2d 898, 902 (Minn.1977).

Everett also argues that, even if the county court has authority to enter judgment in a probate matter, such judgment cannot exceed $10,000. We find no merit in this argument. The probate jurisdiction of the county court is entirely separate and distinct from its jurisdiction in other civil matters, which is limited to cases with not more than $10,000 in controversy. Sec. 27-07.1-17, NDCC. The logical extension of Everett's argument would be that county courts would not have jurisdiction of estates valued at over $10,000. This clearly was not the intent of the legislature when it granted jurisdiction of probate cases to the county court, and we conclude that the $10,000 jurisdictional limit has no application to the county court's probate jurisdiction.

Finally, Everett argues that the judgment entered by the county court improperly serves as a lien upon his property. The judgment, however, is entered against Everett only in his capacity as personal representative of the estate. Judgments against estates must by their very nature be entered against the personal representative, because he is the person authorized to distribute funds from the estate. See, e.g., Secs. 30.1-18-03(2) and 30.1-18-15, NDCC. Furthermore, Sec. 30.1-18-03(3) provides that the personal representative may be sued for obligations incurred by the decedent. See also Sec. 30.1-19-06(1), NDCC (claimant may commence a separate proceeding against personal representative for allowance of claim). A remedy will be available if Everett's individual property is wrongfully encumbered by a lien from a judgment where he is not an individual debtor. See Sec. 28-20-19 NDCC.

We conclude that the court did not err in entering a "judgment," rather than an "order," allowing the claims.

II

Everett next contends that the court erred in allowing Fern to testify that Edna had promised to pay Fern for her help during Edna's illness. Everett contends that these statements were hearsay and should not have been admitted. The trial court held that the statements, although hearsay, were admissible under Rule 804(b)(5), N.D.R.Ev.

The parties and the court below have overlooked the determinative fact: the statements are not hearsay. Rule 801(c), N.D.R.Ev., defines hearsay as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." The...