Fireman's Fund Mortg. Corp. v. Smith

• Decision Date: 20 February 1989
• Docket Number: No. 870081,870081
• Citation: 436 N.W.2d 246
• Parties: FIREMAN'S FUND MORTGAGE CORPORATION, f/k/a Manufacturers Hanover Mortgage Corporation, Plaintiff and Appellee, v. Curtis C. SMITH and Barbara A. Smith, Defendants and Appellants. Civ.
• Court: North Dakota Supreme Court

Page 246

436 N.W.2d 246

FIREMAN'S FUND MORTGAGE CORPORATION, f/k/a Manufacturers Hanover Mortgage Corporation, Plaintiff and Appellee, v. Curtis C. SMITH and Barbara A. Smith, Defendants and Appellants.

Civ. No. 870081.

Supreme Court of North Dakota.

Feb. 20, 1989.

Kent A. Higgins, Bismarck, for defendants and appellants.

Howe, Hardy, Galloway & Maus, PC, Dickinson, for plaintiff and appellee; argued by Gerald D. Galloway.

GIERKE, Justice.

The defendants, Curtis C. Smith and Barbara A. Smith (Smiths), appeal from a county court judgment entered in favor of the plaintiff, Fireman's Fund Mortgage Corporation (Fireman's Fund). We affirm.

The facts involved in this appeal are not in dispute. This is an eviction action as provided for under Chapter 33-06 of the North Dakota Century Code. On January 29, 1987, the summons and complaint in this eviction action were served on the Smiths. A hearing was scheduled for February 17, 1987. At the hearing, the Smiths filed an answer to the complaint alleging that the eviction action was illegal and improper under Section 33-06-02 of the North Dakota Century Code because the time specified for their appearance was more than fifteen days from the date of the service of the summons and therefore the trial court lacked jurisdiction. On February 19, 1987, the trial court issued a memorandum opinion concluding that it had jurisdiction and finding that Fireman's Fund was entitled to possession of the real property at issue in the eviction action. A judgment was entered on February 26, 1987. Smiths filed a notice of appeal on March 17, 1987.

The single issue raised by the Smiths on appeal is whether or not in an eviction action the trial court lacks jurisdiction when the defendant is given a greater length of time to respond and appear than is provided for in Section 33-06-02 of the North Dakota Century Code.

Initially, we note that an eviction action under Chapter 33-06 of the North Dakota Century Code is a summary statutory remedy for recovery of possession of real estate from a party wrongfully in possession. Section 33-06-02 of the North Dakota Century Code allows a person seeking possession of property to limit the defendant's time to respond and answer in order to expedite the eviction proceeding. Section 33-06-02 provides as follows:

"33-06-02. Appearance--Notice of intention to evict--When required--When and how served. In any action for eviction the time specified in the summons for the appearance of the defendant may not be less than three nor more than fifteen days from the date on which it is issued. In all cases arising under subsections 4, 5 and 6 of section 33-06-01, three days' written notice of intention to evict must be given to the lessee, subtenant, or party in possession, before proceedings can be instituted. The notice may be served and returned as a summons is served and returned. Service by delivery of a copy of the summons to the defendant in person within the county must be made at least three days before the time fixed for the appearance of the defendant. Service elsewhere or personal service in any other mode must be made at least seven days before the time fixed for the appearance of the defendant." [Emphasis added.]

The Smiths argue that an eviction statute must be strictly construed. The Smiths argue that an expansion of time for the appearance of the defendant in the eviction action beyond the period specified in Section 33-06-02 of the North Dakota Century Code negates the trial court's jurisdiction of the matter. We do not agree.

This Court recognized in Perry v. Erling, 132 N.W.2d 889, 896 (N.D.1965), quoting with approval from 82 C.J.S. Statutes Sec. 325...