Fettig's Estate, In re

• Decision Date: 28 May 1964
• Docket Number: No. 8120,8120
• Citation: 129 N.W.2d 823
• Parties: In re FETTIG'S ESTATE. In the Matter of the Appeal of Angeline Fettig, Administratrix of the Estate of Philip Fettig, Deceased, from the order allowing the claim of Jack Fettig issued by the County Court of Dunn County, North Dakota, in the Matter of the Estate of Philip Fettig, Deceased. Jack FETTIG, Appellant, v. Angeline FETTIG, individually, and as Administratrix of the Estate of Philip Fettig, deceased, and LeRoy P. Fettig, Alan G. Fettig, Linda A. Fettig, James J. Fettig, Rita M. Fettig, minors, and J. O. Severtson their special guardian, Respondents.
• Court: North Dakota Supreme Court

Page 823

129 N.W.2d 823

In re FETTIG'S ESTATE.

In the Matter of the Appeal of Angeline Fettig,

Administratrix of the Estate of Philip Fettig, Deceased,

from the order allowing the claim of Jack Fettig issued by

the County Court of Dunn County, North Dakota, in the Matter

of the Estate of Philip Fettig, Deceased.

Jack FETTIG, Appellant, v. Angeline FETTIG, individually, and as Administratrix of the

Estate of Philip Fettig, deceased, and LeRoy P. Fettig, Alan

G. Fettig, Linda A. Fettig, James J. Fettig, Rita M. Fettig,

minors, and J. O. Severtson their special guardian, Respondents.

No. 8120.

Supreme Court of North Dakota.

May 28, 1964.

Rehearing Denied Aug. 21, 1964.

Syllabus by the Court

1. An order of the district court refusing to dismiss an appeal from the county court is not an appealable order.

2. An order of the district court remanding the record to the county court for the purpose of making application for an extension of time to perfect the appeal under Section 30-26-06, N.D.C.C., by serving additional necessary parties to the appeal and returning the record to the district court, is not an appealable order.

3. An order made by the district court, in an appeal taken from an order of the county court allowing a creditor's claim, remanding the record on appeal to the county court for the purpose of extending the time for perfecting the appeal and allowing additional parties to be added and served, and which order directs the county judge to enter an order in accordance with the remand, does not involve the merits of an action or some part thereof so as to render such order appealable under Subdivision 5 of Section 28-27-02, N.D.C.C.

Floyd B. Sperry, Bismarck, for appellant.

Mackoff, Kellogg, Muggli & Kirby, Dickinson, and Marshall T. Bergerud, Killdeer, for respondents.

TEIGEN, Judge.

In this case we are met at the outset with a motion to dismiss this appeal on the ground that the order of the district court, from which the appeal is taken, is interlocutory and nonappealable.

A review of the record discloses the following: The claimant, who is the appellant herein, filed a claim in county court against the estate of Philip Fettig, deceased, in the amount of $129,044.36. The claim was allowed by the county court in the amount of $92,045.29. The administratrix of the estate appealed from the county court's order allowing the claim to the district court demanding a trial de novo before a jury. The notice of appeal to the district court was served upon the claimant and his attorneys but was not served upon the heirs at law in the estate, who are minors, or their guardian. The claimant moved in the district court that the appeal be dismissed on the ground that the court had not acquired jurisdiction. The administratrix moved that the district court remand the record to the county court for the purpose of extending the time for perfecting the appeal to the district court. Both motions were heard by the district court and it issued one order in which it denied the motion to dismiss the appeal and granted the motion to remand. The order provides as follows:

'1. That the Motion of Jack Fettig to dismiss the appeal of Angeline Fettig, Administratrix, from an Order of the County Court of Dunn County dated June 19, 1961, such Order allowing a claim of said Jack Fettig against the above entitled estate in the sum of Ninety-two Thousand Forty-five and 29/100 Dollars ($92,045.29) be and the same is hereby denied.

'2. That the present record on appeal be returned by the Clerk of this Court to the Judge of the County Court, Dunn County, North Dakota, for the purpose of carrying out and executing this Order, and performing the acts herein directed by such Court to be done or performed.

'3. That the County Court of Dunn County, North Dakota, be and is hereby directed to issue an order extending the time for perfecting the above entitled appeal and permitting amendment of the Notice of Appeal so as to permit joinder and inclusion of minor children of the decedent and their legal representative as necessary parties to said appeal.

'4. That the County Court of Dunn County, North Dakota, subsequent to any amendment of the Notice of Appeal and service thereof upon necessary parties not previously served, certify and return to the Clerk of this Court the record on appeal herein as so amended and supplemented.'

The instant appeal is from this order which the administratrix claims is nonappealable.

The issues on the motion to dismiss this appeal may be succinctly stated as follows: Where an appeal from an order allowing a creditor's claim is taken from the county court to the district court, does an appeal to the Supreme Court lie from:

1. An interlocutory order of the district court refusing to dismiss the appeal on the grounds that the heirs at law were not made parties to nor served with the notice of appeal, although timely service was made on a claimant also a party to the appeal; and

2. An interlocutory order of the district court remanding the record to the county court for the purpose of obtaining an extension of time to perfect the appeal from the county court to the district court and to serve additional necessary parties to the appeal?

The first issue is well settled in the first In re Bratcher case (Eberlein v. Eberly), 74 N.D. 12, 24 N.W.2d 54, wherein this court held that an order of the district court refusing to dismiss an appeal from the county court, on the ground that the appeal from the county court was so defective it failed to confer jurisdiction upon the district court, is not an appealable order and that the question may be reviewed upon a proper record in an appeal from the final judgment.

The second issue, as to whether that part of the interlocutory order of the district court remanding the record to the county court for the purpose of obtaining an extension of time to perfect the appeal from the county court to the district court, and to serve additional parties as that issue developed in this case, has not previously been passed upon in this State.

Following a hearing on the claim, the county court made a memorandum decision dated June 2, 1961. It made certain findings and directed the attorney for the administratrix to draw an order. An order approving the claim was subsequently entered by the court on June 19, 1961. On June 30, 1961, a notice of appeal to the district court from the said order approving the claim was served on the claimant and his attorneys. It was filed with proofs of service in the county court on July 6, 1961. It was not served upon the heirs at law or their guardian. The claimant contends it was not timely filed for the reason that it was not filed within thirty days of the date of the county judge's memorandum, which, he argues, constituted the order approving the claim. This argument is not borne out by the record. The court's memorandum contains no order approving the claim. It merely contains findings with the direction that an order be drawn accordingly. An order was drawn and signed by the court on June 19, 1961. The notice of appeal with proofs of service was filed within thirty days from the date of this order. Therefore, the appeal was timely taken in accordance with Section 30-26-03, N.D.C.C.

The county court certified to the district court the papers and records, upon which the appeal was taken, on July 31, 1961. Thereafter, on the 5th day of September, 1962, the judge of the county court entered an order denying the petition for extension of time for the service of the notice of appeal. The claimant argues that, in accordance with the holding in the second In re Bratcher's Estate case, 76 N.D. 194, 34 N.W.2d 825, where the county court in the exercise of its discretion had refused to extend the time for service of the notice of appeal on the heirs beyond the statutory period of thirty days, a valid appeal was not perfected to the district court and it should have been dismissed.

This requires an examination of the county court's proceedings. The moving papers in the county court proceeding are not a part of the judgment roll, but the order of the county court denying the extension is. It appears from the county court's findings that before the petition was filed, the appeal had been placed on the calendar of the district court and a motion was made and heard for a dismissal of the appeal on the ground that the appeal had not been timely or properly taken. The judge, the Honorable Mark H. Amundson, had taken the motion under advisement. The county court...