Fowler v. Delzer

• Decision Date: 27 April 1970
• Docket Number: No. 8604,8604
• Citation: 177 N.W.2d 756
• Parties: James FOWLER, Plaintiff, Respondent and Appellant in Part, v. Reinhold DELZER and Benny Delzer, Defendants, Appellants and Respondents in Part. Civ.
• Court: North Dakota Supreme Court

Page 756

177 N.W.2d 756

James FOWLER, Plaintiff, Respondent and Appellant in Part, v. Reinhold DELZER and Benny Delzer, Defendants, Appellants and Respondents in Part.

Civ. No. 8604.

Supreme Court of North Dakota.

April 27, 1970.

Rehearing Denied June 18, 1970.

Syllabus by the Court

1. An appeal in a civil action, where an undertaking is not furnished or waived, is not perfected and is ineffectual for any purpose. The Supreme Court has neither the power nor the jurisdiction to hear and determine such appeal.

2. Where a party named as a respondent in an appeal in a civil action also takes an appeal, he must comply with the statutory requirements for taking and perfecting an appeal to make his appeal effectual.

3. An undertaking for costs, on appeal, is for the benefit of the respondent and where he has not waived the undertaking, and none is furnished, this court, in the absence of a showing that the appellant was unable to furnish the required undertaking, has nothing to determine except that the appeal is not perfected and is not effectual for any purpose.

4. It is error for the trial court to exercise its discretion in granting a new trial when the motion for such new trial is not in conformity with law, and where such defect is duly objected to by the adverse party.

Fleck, Smith, Mather, Strutz & Mayer, Bismarck, for defendants, appellants and respondents in part.

William R. Mills, Bismarck, for plaintiff, respondent and appellant in part.

TEIGEN, Chief Justice.

This is an appeal from an order entered on a motion for a new trial, in a personal injury action tried to a jury, in which the court vacated the verdict, directed an additur, and provided that if the additur was not agreed to by the defendants, that the plaintiff have a new trial on all issues in the case. The action is one sounding in tort, was tried to a jury, and the jury found in favor of the plaintiff and returned its verdict for damages.

The plaintiff was injured when he fell from a ladder he had ascended to remove screen windows and put on storm windows. The ladder slipped and the plaintiff fell onto a concrete stoop, injuring his knees. The claim for relief is based on the alleged negligence of the defendant Ben Delzer when he failed to hold the ladder. The claim against Reinhold Delzer is premised on an alleged agency relationship between Ben Delzer and Reinhold Delzer. The jury returned a verdict in favor of the plaintiff, against both defendants, in the amount of $1,000 for special damages and $1,750 for general damages. The plaintiff moved for a new trial on the ground of the insufficiency of the evidence to justify such a small verdict. He also specifies errors at law, but appears to have abandoned these in his arguments and presentation to the trial court, and the trial court did not pass on them. The defendants resisted the motion for a new trial. However, the trial court, in an opinion issued from the bench, directed an additur of $500 to the special damages and $1,750 to the general damages, or that a new trial be granted. In its direction from the bench, the trial court ordered the court reporter to transcribe the oral order and provided that such transcript would stand as a written order of the court. Thereafter, the defendants moved for a modification of the order on the ground that the special damages awarded by the jury actually exceeded the amount proved. Following a hearing, the trial court modified its order by eliminating the additur of $500 to the special damages but permitted the additur of $1,750 to the general damages to stand.

The defendants have appealed to this court from the final order for additur or new trial, as amended, and specify error as follows:

'A. The Motion for New Trial was defective for not specifying in what respect the evidence was insufficient to support the verdict.

'B. The Order for Additur or New Trial does not grant any relief for which the Plaintiff moved.

'C. The award of the additur or granting of a new trial was arbitrary, invaded the province of the jury, and was an abuse of legal discretion.'

The plaintiff has also appealed from the order; however, he failed to serve and file an undertaking on appeal, as required by statute, and the defendants have asked that the plaintiff's appeal be dismissed for the reason that it has not been perfected.

Section 28--27--05, N.D.C.C., provides that an appeal is taken by the service of a notice of appeal and perfected by the service of an undertaking for costs, or a deposit of money in lieu thereof, or by written waiver of the undertaking. The plaintiff, in taking his appeal, has not complied with the requirement that an undertaking be served, nor has he requested permission to amend his appeal or to perfect it so as to comply with the statutory requirement.

Section 28--27--09, N.D.C.C., states:

'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 the appellant will pay all costs and damages which may be awarded against him on the appeal not exceeding two hundred fifty dollars.'

Section 28--27--10, N.D.C.C., provides for the deposit of a sum of money in lieu of any undertaking and that such undertaking and deposit may be waived, in writing, by the respondent for whose benefit the same is required to be made.

In Gamble-Robinson Minot Co. v. Mauratis, 55 N.D. 616, 214 N.W. 913, the appellant made a deposit in the amount of the undertaking with the clerk of court but failed to serve notice of deposit, as required by the statute. This court, in denying a motion to dismiss, said:

'The service of an undertaking on appeal is not jurisdictional. The notice of appeal, if served in good faith, confers jurisdiction and thereafter the court, pursuant to Section 7840, C.L.1913 (Section 28--27--26, N.D.C.C.), may permit the appeal to be perfected by providing the requisite undertaking.'

This case was followed in In re Guardianship of Frank (N.D.1964), 128 N.W.2d 355, in which this court also held that:

'Although the Supreme Court has jurisdiction to permit an appeal to be perfected, it has neither the power nor jurisdiction to hear and determine an appeal that has not been perfected.'

Where no proper undertaking is furnished on appeal, the appeal must be dismissed. Karabensh v. Grant (N.D.1955), 73 N.W.2d 782. The plaintiff, in resistance to the defendants' arguments that the plaintiff's appeal is not perfected, takes the position that he has cross-appealed and, as a cross-appellant, he is not required to furnish an undertaking. He has cited no statute nor authority to support his contention. Neither our statutes nor our rules provide for a cross-appeal as such; neither do they distinguish between an appeal and a cross-appeal. However, any party deeming himself aggrieved may appeal and, therefore, we apply the statutes and rules as they relate to appeals to the second, or subsequent, appellant who is sometimes denominated a cross-appellant. The plaintiff has taken a separate appeal, which is permissible under our statutes, and must comply with the statutes to perfect it. Although, as we stated earlier, we have jurisdiction to permit the appeal to be perfected, we have neither the power nor the jurisdiction to hear and determine an appeal that has not been perfected. In re Guardianship of Frank, Supra; Karabensh v. Grant, Supra; McClenahan v. Meek, 68 N.D. 255, 278 N.W. 469.

Secondly, the plaintiff argues, through his attorney, that he does not have the financial ability to furnish an undertaking on appeal because of his low economic worth and that, under such circumstances, he should not be required to furnish the undertaking. He has not, however, furnished proof of indigency. All that we have before us are the plaintiff's arguments as contained in the brief and in the oral argument. On the basis of the record before us, we are unable to make a determination on this question. This is not to say, however, that if the plaintiff had furnished evidence of his indigency, that the statutory requirement would be waived. We have no statutory provision for waiver except by the respondent. The plaintiff has cited no law to us to support his contention that an undertaking of an indigent person is not necessary to perfect his appeal in a civil matter in order to satisfy any provision of either the State or Federal Constitution. It is generally held that guaranties of due process of law and equal protection of the law require that appellate review in criminal cases, if made generally available, shall not be denied merely because of the defendant's inability to pay the costs to obtain such a review. However in accordance with 4 Am.Jur.2d, Appeal and Error, section 345:

'It is not clear how far these constitutional guaranties may operate to insure such a right in civil proceedings.'

It appears that statutes have been enacted in some jurisdictions making provision for appeals in civil matters by indigent parties; however, the right is controlled by statute and it is generally held that the statutory conditions must be strictly complied with. Proof of indigency is required and the relief is available only to one who acts with diligence. 4 Am.Jur.2d, Appeal and Error, Sections 345 through 351.

The right and regulation of appeal is purely statutory. Indianhead Truck Line, Inc. v. Thompson (N.D.1966), 142 N.W.2d 138; Berg v. Kremers (N.D.1967), 154 N.W.2d 911; Keller v. Keller (N.D.1968), 158 N.W.2d 694. Although statutes governing appeals are to be liberally construed to maintain the right (In re Heart River Irrigation District, 78 N.D. 302, 49 N.W.2d 217), nevertheless, when the law prescribes the mode of exercising a power, or privilege, it implies an inhibition to exercise the given power in any other way. Divide County v. Baird, 55 N.D. 45, 212 N.W. 236, 51 A.L.R. 296. The purpose of the undertaking is to afford protection to the respondent should the...