Higgins v. Hawks, 8071

• Decision Date: 28 March 1963
• Docket Number: No. 8071,8071
• Parties: William HIGGINS and Milton K. Higgins, Plaintiffs and Appellants, v. Jeff HAWKS et al., Defendants and Respondents.
• Court: North Dakota Supreme Court

Page 129

122 N.W.2d 129

William HIGGINS and Milton K. Higgins, Plaintiffs and Appellants, v. Jeff HAWKS et al., Defendants and Respondents.

No. 8071.

Supreme Court of North Dakota.

March 28, 1963.

On Rehearing May 16, 1963.

Syllabus by the Court

1. Where after an appeal has been taken, the judgment roll in the case has been certified and transmitted to the Supreme Court by the clerk of the district court in

which the action was tried, the record is sufficient to permit the Supreme Court to pass upon the merits of a motion to dismiss upon grounds alleged to appear upon the face of the judgment roll.

2. The record transmitted to the Supreme Court upon appeal cannot be impeached or altered by affidavit or other evidence de hors the record.

3. A motion to remand the record upon appeal to enable the district court to consider a motion to amend the record and settle a statement of the case is a proper motion in the Supreme Court.

4. A notice of appeal to the Supreme Court may be served in the manner prescribed by Rule 5(b) of the Rules of Civil Procedure.

5. Death of a party to an action after judgment does not abate the judgment.

6. 'Party' within statute requiring that notice of appeal must be served upon 'adverse party' includes personal representative of a deceased named party who died subsequent to the entry of judgment and before the appeal was taken.

Higgins & Crum, Bismarck, for plaintiffs and appellants.

William R. Mills, Bismarck, for defendants and respondents.

BURKE, Judge.

Respondents have moved to dismiss this appeal for alleged jurisdictional defects in the service and filing of the notice of appeal. The action is one to quiet title to a tract of land which the plaintiffs alleged was located in Morton County. Each of the answering defendants alleged that the described land was situated in Burleigh County and prayed that the case be dismissed for want of jurisdiction. The trial court found that the tracts described were located in Burleigh County and that the District Court of Morton County had no jurisdiction of the cause. Accordingly, a judgment for the dismissal of the action was entered on March 19, 1962. Notice of entry of the judgment was served upon the attorney for plaintiff March 20, 1962. On September 20, 1962, a notice of appeal from the judgment, undertaking upon appeal, and demand for trial anew were served upon the defendants, William R. Mills, Jack Fox, Burleigh County and Arthur W. Tavis, by mailing copies thereof to their respective attorneys and upon the same date, such notice, undertaking and demand were personally served upon one of the executors of the last will of H. C. Erling deceased. The notice of appeal was filed in the office of the Clerk of Court of Morton County. It bears a stamp indicating that it was filed September 21, 1962.

The specific grounds urged for the dismissal are: That such notice of appeal was filed in the office of the Clerk of Court of Morton County more than six months after the service of the judgment upon the attorney for appellants: (2) That service of the notice of appeal by mail upon a person who resides in the same city as the attorney who prepared the notice is void: and (3) That service of the notice of appeal upon the personal representative of a party, who died subsequent to the entry of judgment, without first having such representative substituted as a party in the action is void.

In resistance to the motion appellants have filed an affidavit by their attorney in which he deposes that he personally filed the notice of appeal with the Clerk of the District Court of Morton County on September 20, 1962, and that the date shown thereon by the Clerk of Court's stamp is erroneous. Appellants have also moved to remand the record in the case to the district court so that they may take appropriate action to secure a correction of the alleged error in stamping an incorrect filing date upon the notice of appeal and to secure a settled statement of the case. In reply to the affidavit and motion of appellants, respondents urge that the stamp impressed by the clerk of court imports absolute verity and that it is conclusive upon appellants.

Upon this appeal, there is before us the judgment roll, notice of appeal and appeal bond certified and transmitted to this Court by the Clerk of the District Court of Morton County at the request of the respondents. Section 28-27-06 NDCC permits such procedure and provides that no further certificate or attestation shall be necessary. Although no statement of the case has ever been settled on this appeal, the record before us is sufficient to pass upon any errors appearing upon the face of the judgment roll. Cary v. Kautzman, 78 N.D. 875, 53 N.W.2d 99; Compson v. Olson, (N.D.) 75 N.W.2d 319.

This record, by the impression of the clerk of court's filing stamp, shows that the notice of appeal was filed one day too late. The affidavit filed by the attorney for appellants to the effect that an incorrect date is shown by this stamp, cannot be considered for the purpose of correcting the record here.

'* * * That record cannot be impeached by affidavits submitted in this court. If the record is incomplete or incorrect, amendment or correction must be sought by appropriate proceedings, * * *' Hufford v. Flynn, 48 N.D. 33, 182 N.W. 941, 943.

This affidavit, however, may be considered in support of the motion to remand as it suggests a possibility that the record may be in error. In such a case a motion to remand the record to enable the district court to consider the merits of the motion to amend is proper. Mahanna v. Westland Oil, (N.D.) 107 N.W.2d 353. Since there is a possibility that the record may be in error, in the interest of justice, we deny the motion to dismiss the appeal upon the ground that the notice of appeal was filed after the time for appeal had expired, and the record will be remanded to the district court if other grounds of the motion to dismiss are not sustained.

Upon the second ground urged for the dismissal of this appeal, the question is: Has the rule formerly followed by this court with respect to the service of notices of appeal been modified by the adoption of Rule 5(b) N.D.R.Civ.P.? Prior to the adoption of this rule, service by mail could only be made '[W]hen the person making the service and the person on whom it is to be made reside in different places between which there is a regular communication by mail.' Sec. 28-2812 NDRC 1943. Consistent with the above cited statute we have held that service of a notice of appeal by mail where the parties reside in the same city is not authorized and void. Garske v. Hann, 48 N.D. 42, 182 N.W. 933.

Rule 5(b) N.D.Civ.P. which became effective July 1, 1957, provides for service of pleadings and other papers subsequent to the acquisition of jurisdiction over the parties by the court; it reads:

'Whenever under these rules service is required or permitted to be made upon a party represented by an attorney the service shall be made upon the attorney unless service upon the party himself is ordered by the court. Service upon the attorney or upon a party shall be made by delivering a copy to him or by mailing it to him at his last known address or, if no address is known, upon order of the court by leaving it with the clerk of the court. Delivery of a copy within this rule means: Handing it to the attorney or to the party; or, leaving it at his office with his clerk or other person in charge thereof; or, if there is no one in charge, leaving it in a conspicuous place therein; or, if the office is closed or the person to be served has no office, leaving it at his dwelling house or usual place of abode with some person of suitable age and discretion then residing therein. Service by mail is complete upon mailing.'

This rule clearly permits service by mail in all cases, including those where the parties reside in the same city. Respondent contends, however, that the rule by its own terms applies only to a service required by the Rules of Civil Procedure, that the service of a notice of appeal is not such a service and is therefore governed by the statute and not by the rule. He also points out that Rule 86(b) N.D.Civ.P. provides:

'Upon the taking effect of these rules all statutes and parts of statutes in conflict herewith and the statutes listed in Tables B and C are superseded in respect of practice and procedure in the district courts.'

From the foregoing rule he argues that since statutes superseded, are superseded only with respect to practice and procedure in district courts, they are not superseded with respect to an appellate practice but remain in full force and effect.

This argument would be persuasive except for the fact that the Legislature in enacting the Century Code omitted Sec. 28-2812, supra, with the notation that it had been superseded by Rule 5(b) N.D.Civ.P. The Legislature also incorporated into...