Hagert v. Hatton Commodities, Inc., No. 870306

CourtUnited States State Supreme Court of North Dakota
Writing for the CourtVANDE WALLE; ERICKSTAD
Citation421 N.W.2d 473
Docket NumberNo. 870306
Decision Date29 March 1988
PartiesCurtis HAGERT, Sr., Curtis Hagert, Jr., and David Hagert, all d/b/a Hagert Farms, Plaintiffs and Appellees, v. HATTON COMMODITIES, INC., Defendant, Third-Party Plaintiff and Appellee, v. GREELEY TRADING COMPANY, Third-Party Defendant and Appellee, and Powell Bean Growers Association, Third-Party Defendant and Appellant. Civ.

Page 473

421 N.W.2d 473
Curtis HAGERT, Sr., Curtis Hagert, Jr., and David Hagert,
all d/b/a Hagert Farms, Plaintiffs and Appellees,
v.
HATTON COMMODITIES, INC., Defendant, Third-Party Plaintiff
and Appellee,
v.
GREELEY TRADING COMPANY, Third-Party Defendant and Appellee,
and
Powell Bean Growers Association, Third-Party Defendant and Appellant.
Civ. No. 870306.
Supreme Court of North Dakota.
March 29, 1988.

Page 474

Patrick W. Fisher of McConn, Fisher, Olson & Daley, Grand Forks, for plaintiffs and appellees (Hagert); no appearance.

Stephen W. Plambeck of Nilles, Hansen & Davies, Fargo, for defendant, third-party plaintiff, and appellee (Hatton).

Paul G. Woutat (argued) and Carol E. Johnson of Vaaler, Gillig, Warcup, Woutat, Zimney & Foster, Grand Forks, for third-party defendant and appellee (Greeley).

David M. Box of Degnan, McElroy, Lamb, Camrud, Maddock & Olson, Ltd., Grand Forks, for third-party defendant and appellant (Powell Bean).

VANDE WALLE, Justice.

Powell Bean Growers Association (Powell Bean) appealed from an order denying its request for an extension of time in which to file a notice of appeal. We affirm.

Hagert Farms purchased certified Wyoming 166 pinto bean seed from Hatton Commodities, Inc. (Hatton). After the seed was planted and had germinated, it was discovered that the bean plants were infected with a disease known as "halo blight." Hagert Farms destroyed the bean plants and reseeded.

Hagert Farms then commenced an action against Hatton, alleging that the bean seed was contaminated. Hatton answered the complaint and filed third-party claims against the supplier of the seed, Greeley Trading Company (Greeley), and against the producer of the seed, Powell Bean. Both Powell Bean and Greeley then filed cross-claims against each other and counterclaims against Hatton.

Since that time this case has twice gone to trial, with each trial giving rise to an appeal. Each of those appeals resulted in a remand to the trial court for a new trial. Our decisions in those appeals are reported at 350 N.W.2d 591 (N.D.1984) [Hagert I ], and 384 N.W.2d 654 (N.D.1986) [Hagert II ]. The facts underlying this case and the subsequent trials are described in greater detail in each of those opinions.

The facts relevant to this appeal are that subsequent to this court's decision in Hagert II, Hatton moved the trial court, pursuant to Rule 60, N.D.R.Civ.P., to reinstate a summary judgment for indemnity and attorney fees awarded to Hatton and Greeley prior to the second trial. The motion was granted. On April 16, 1986, a corrected judgment was entered, reinstating the summary judgment. On May 29, 1987, both Greeley and Hatton mailed separate notices of entry of judgment to Powell Bean. The notice sent by Hatton was dated June 29, 1987, but the accompanying affidavit of mailing bore a May 29, 1987, date.

Powell Bean prepared and signed a notice of appeal from the corrected judgment on July 31, 1987. However, it neglected to file this notice of appeal with the clerk of the trial court until August 7, 1987, beyond the 60-day period in which to file an appeal

Page 475

provided by Rule 4(a), N.D.R.App.P. Powell Bean then moved for an extension of time for the filing of the notice of appeal. The trial court denied the motion and this appeal ensued.

The sole question before this court is whether the trial court abused its discretion when it refused to allow an extension of the time for filing the notice of appeal. Rule 4 of the North Dakota Rules of Appellate Procedure governs the time for taking an appeal. Rule 4(a) provides that in civil cases a notice of appeal "shall be filed with the clerk of the trial court within 60 days of the date of service of notice of entry of the judgment or order appealed from." The rule also provides for an extension of time for the filing of a notice of appeal:

"Upon a showing of excusable neglect, the trial court may extend the time...

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5 practice notes
  • State v. Fischer, No. 20060153.
    • United States
    • North Dakota Supreme Court
    • February 28, 2007
    ...Procedure, we may look to the interpretation of "good cause" under the federal rule as a guide. See Hagert v. Hatton Commodities, 421 N.W.2d 473, 475 (N.D.1988). Although no federal court has explicitly defined the meaning of good cause under Rule 4, the good cause standard is generally see......
  • State v. DuPaul, Cr. N
    • United States
    • United States State Supreme Court of North Dakota
    • February 8, 1995
    ...notice of appeal.' " K & K Implement v. First Nat'l Bank, 501 N.W.2d 734, 737 (N.D.1993), quoting Hagert v. Hatton Commodities, Inc., 421 N.W.2d 473, 475 (N.D.1988). No unique circumstances were shown In his "Motion For Excusable Neglect" to the trial court, DuPaul asserted that he received......
  • Schaan v. Magic City Beverage Co., No. 990119.
    • United States
    • United States State Supreme Court of North Dakota
    • April 5, 2000
    ...time for filing a notice of appeal under our rule is excusable neglect" and that "good cause is not a ground for granting an extension." 421 N.W.2d 473, 475 (N.D.1988). Thus, the trial court's order contradicted both the express language of Rule 4(a) and our clear precedent interpreting tha......
  • Nastrom v. Nastrom, Nos. 970260
    • United States
    • United States State Supreme Court of North Dakota
    • April 8, 1998
    ...the failure to file a timely notice of appeal was caused by unique or extraordinary circumstances." Hagert v. Hatton Commodities, Inc., 421 N.W.2d 473, 475 (N.D.1988). Sharon contends the requisite "unique or extraordinary circumstances" here was discovery that Ned may have testified untrut......
  • Request a trial to view additional results
5 cases
  • State v. Fischer, No. 20060153.
    • United States
    • North Dakota Supreme Court
    • February 28, 2007
    ...Procedure, we may look to the interpretation of "good cause" under the federal rule as a guide. See Hagert v. Hatton Commodities, 421 N.W.2d 473, 475 (N.D.1988). Although no federal court has explicitly defined the meaning of good cause under Rule 4, the good cause standard is generally see......
  • State v. DuPaul, Cr. N
    • United States
    • United States State Supreme Court of North Dakota
    • February 8, 1995
    ...notice of appeal.' " K & K Implement v. First Nat'l Bank, 501 N.W.2d 734, 737 (N.D.1993), quoting Hagert v. Hatton Commodities, Inc., 421 N.W.2d 473, 475 (N.D.1988). No unique circumstances were shown In his "Motion For Excusable Neglect" to the trial court, DuPaul asserted that he received......
  • Schaan v. Magic City Beverage Co., No. 990119.
    • United States
    • United States State Supreme Court of North Dakota
    • April 5, 2000
    ...time for filing a notice of appeal under our rule is excusable neglect" and that "good cause is not a ground for granting an extension." 421 N.W.2d 473, 475 (N.D.1988). Thus, the trial court's order contradicted both the express language of Rule 4(a) and our clear precedent interpreting tha......
  • Nastrom v. Nastrom, Nos. 970260
    • United States
    • United States State Supreme Court of North Dakota
    • April 8, 1998
    ...the failure to file a timely notice of appeal was caused by unique or extraordinary circumstances." Hagert v. Hatton Commodities, Inc., 421 N.W.2d 473, 475 (N.D.1988). Sharon contends the requisite "unique or extraordinary circumstances" here was discovery that Ned may have testified untrut......
  • Request a trial to view additional results

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