Friesz v. Olsness

• Decision Date: 26 June 1924
• Citation: 199 N.W. 590,51 N.D. 210
• Parties: FRIESZ v. OLSNESS, Commissioner of Insurance.
• Court: North Dakota Supreme Court

51 N.D. 210

199 N.W. 590

FRIESZ

v.OLSNESS, Commissioner of Insurance.

Supreme Court of North Dakota.

June 26, 1924.

Syllabus by the Court.

Section 7324, Comp. Laws 1913, defining the rule for the computation of time, applies in all cases, unless a contrary intention affirmatively appears.

An affidavit and application for reinstatement of hail insurance and for additional indemnity, filed with the county auditor on July 5th, is timely, under the provisions of sections 12 and 15, chapter 232, Sess. Laws 1923, providing that such affidavit and application shall be made and filed prior to July 5th.

Appeal from District Court, Burleigh County; Fred Jansonius, Judge.

Action by Christian Friesz against S. A. Olsness, as Commissioner of Insurance. From an order denying a motion for a new trial after dismissal, plaintiff appeals. Reversed, and new trial ordered.Langer & Nuchols, of Mandan, for appellant.

George F. Shafer, Atty. Gen., and John Thorpe and L. L. Butterwick, Asst. Attys. Gen., for respondent.

NUESSLE, J.

The defendant and respondent, Olsness, is the commissioner of insurance of the state of North Dakota, and as such is charged with the administration of the state hail insurance department.

The plaintiff and appellant, Friesz, is a farmer living in Grant county. In 1923 he withdrew his crop from state hail insurance protection. Thereafter he decided that he would take advantage of the state insurance,and on July 2, 1923, he executed the proper papers to cancel the withdrawal and reinstate such insurance and to apply for additional indemnity, under the provisions of sections 12 and 15, chapter 232, Laws of 1923. That part of section 12 with which we are here concerned reads:

“* * * Provided, further, that the withdrawal from hail indemnity tax may be cancelled and the insurance re-instated any time prior to July 5th by filing an affidavit of application for such re-instatement in duplicate with the county auditor on blanks furnished by the hail insurance department, and the county auditor shall stamp on both the original and duplicate of such application the hour and the date when such application was received in his office and shall within three days file a copy of such application with the hail insurance department. * * *”

Section 15 provides:

“The maximum amount of indemnity for total loss shall be $7.00 per acre except where the owner, occupant or tenant shall, prior to the fifth day of July of any year, make application to the county auditor for an additional $3.00 per acre indemnity. * * *”

These papers were executed at New Leipzig, and were mailed to the county auditor at Carson, the county seat. They reached the post office at Carson on July 4th, but, owing to the fact that the 4th was a holiday, were not taken from the post office, and did not reach the auditor's office until the 5th. Friesz believed that the papers had been duly received and filed. He had no notice to the contrary, and thought that his crop was insured. In August the crop was destroyed by hail. Due notice of loss was given. There is no question as to the fact of the loss or the amount he is entitled to from the state hail department, if the insurance be in effect. But the respondent refused to certify the claim to the state auditor for payment on the ground that the appellant was not insured because he had not made timely application for reinstatement and additional indemnity.

The appellant, therefore, began this proceeding in mandamus, and the district court of Burleigh county issued an alternative writ directed to the respondent, Olsness, requiring him to certify the claim to the state auditor or show cause why he had not done so. The respondent answered, and, showing cause, prayed that the alternative writ be quashed and the proceeding dismissed. The facts were stipulated, and thereafter the district court made its order quashing the alternative writ and dismissing the proceeding. Appellant moved for a new trial, which motion was denied, whereupon he prefected this appeal to this court.

[1] The sole question involved in this case is whether the application and affidavit of the appellant for the reinstatement and increase of his insurance, and which were received by and filed with the county auditor on July 5th, were received and filed within the time required by the statute. The appellant contends that the statute provides a time within which the affidavit and application are to be filed with the county auditor; that, while the provision is that this be done prior to July 5th, yet thereby the Legislature fixed the limit within which it is to be done; that the Legislature must be held to have known that July 4th was and always would be a holiday; that the legislative intention is plain that such filing might be done until July 5th; that the provisions of sections 7300 and 7324, C. L. 1913, are applicable, and therefore, since July 4th was a holiday, the filing with the county auditor was properly done on July 5th, the next succeeding business day.

Section 7300 provides:

“Whenever an act of a secular nature, other than a work of necessity or mercy, is appointed by law or contract to be performed upon a particular day, which falls upon a holiday, such act may be performed upon the next business day with the same effect as if it had been performed upon the day appointed.”

And section 7324 provides:

“The time in which any act provided by law is to be done is computed by excluding the first day and including the last, unless the...