Kline v. Landeis

• Citation: 147 N.W.2d 897
• Decision Date: 01 December 1966
• Docket Number: No. 8344,8344
• Parties: Orval H. KLINE, Jr., and Regina K. Kline, Plaintiffs and Respondents, v. Peter LANDEIS, Jr., and Tillie Landeis, Defendants and Appellants.
• Court: United States State Supreme Court of North Dakota

Page 897

147 N.W.2d 897

Orval H. KLINE, Jr., and Regina K. Kline, Plaintiffs and Respondents, v. Peter LANDEIS, Jr., and Tillie Landeis, Defendants and Appellants.

No. 8344.

Supreme Court of North Dakota.

Dec. 1, 1966.

Rehearing Denied Jan. 26, 1967.

Syllabus by the Court

1. In an appeal to the Supreme Court, the moving party, within thirty days after notice of the entry of judgment or of the order to be reviewed, or within such further time as the court shall allow, must procure a transcript of the evidence and furnish a copy thereof to the adverse party with a notice that at a time not less than fifteen nor more than thirty days after the service of such notice, he will present the same to the judge for certification as a correct transcript of the evidence and of all proceedings had and made matter of record by the official reporter, and that, at the same time, he will ask the judge for a certificate identifying the exhibits and depositions in the case. § 28--18--06, N.D.C.C.

2. An application for an extension of time within which the statement of the case may be settled must be made upon a showing of good cause. The determination of whether good cause has been shown is for the trial court to make, and unless the decision of the trial court indicates an abuse of discretion, it will not be reversed on appeal.

3. The burden of showing good cause in support of a motor for a settlement of the statement of the case after the time for settlement has expired is upon the moving party.

4. The affidavit filed in support of the motion for an order settling the statement of the case after the statutory time for settlement had expired has been examined, and it is held that it does not show good cause for the granting of the motion. Therefore, the trial court's order denying the motion was proper and did not constitute an abuse of the court's discretion.

Rausch & Chapman, Bismarck, for appellants.

Kelsch & Wise, Mandan, for respondents.

ERICKSTAD, Judge.

The plaintiffs, Orval H. Kline, Jr., and Regina K. Kline, secured a judgment in the District Court of Sioux County against the defendants, Peter Landeis, Jr., and Tillie Landeis, on March 20, 1964.

Notice of the entry of judgment was served by mail on Mr. and Mrs. Landeis on April 7, 1964. An execution was issued by the Clerk of the District Court of Sioux County on May 25, 1964, and returned by the sheriff unsatisfied on July 22, 1964. Notice of appeal from the judgment and undertaking for costs on appeal were served on Mr. and Mrs. Kline on September 16, 1964. The transcript of the trial court proceedings was completed and delivered to counsel for Mr. and Mrs. Landeis about October 15, 1964. On August 31, 1965, execution was again issued. The sheriff's return indicates that he was unable to find personal property upon which he could levy, and for that reason he levied against certain real property owned by Mr. and Mrs. Landeis. This property was sold by the sheriff at public auction on October 26, 1965, Mr. and Mrs. Kline being the highest bidders. Order confirming sale on execution was made by the district court on November 10, 1965.

On January 20, 1966, Mr. and Mrs. Landeis made a motion for an order settling the statement of the case. This motion was heard on January 28, 1966, and on March 15, 1966, the district judge issued a memorandum opinion in which he determined that the motion should be denied. The court executed its order denying the motion on March 21, 1966.

Thereafter, on May 17, 1966, Mr. and Mrs. Landeis appealed to this court from the order denying the motion for an order settling the statement of the case. The pertinent part of the controlling statute in this case reads as follows:

28--18--06. Statement of the case.--The record in a case for presentation to the trial court on a motion for a new trial or for judgment notwithstanding the verdict, or to the supreme court on appeal, shall be prepared as follows:

1. Within thirty days after notice of the entry of judgment or of the order to be reviewed, Or within such further time as the court shall allow, the moving party must procure a transcript of the evidence and furnish a copy thereof to the adverse party with a notice that at a time not less than fifteen nor more than thirty days after the service of such notice, he will present the same to the judge for certification as a correct transcript of the evidence and of all proceedings had and made matter of record by the official reporter, and that, at the same time, he will ask the judge for a certificate identifying the exhibits and depositions in the case; * * * (Emphasis added.)

North Dakota Century Code.

In support of the motion before the trial court, the attorney for Mr. and Mrs. Landeis filed the following affidavit:

DANIEL J. CHAPMAN, being first duly sworn on oath, deposes and says that he is an attorney at law practicing in the City of Bismarck, North Dakota; that judgment in the above entitled matter was entered on the 20th day of March, 1964, and that on the 17th day of August, 1964, a Notice of Appeal and Demand for Trial De Novo, together with an Undertaking for Costs on Appeal was served upon the plaintiffs in behalf of the defendants; that thereafter this affiant ordered and requested a transcript of the proceedings in this case and this affiant estimated that the cost of said transcript would not exceed $100.00; that thereafter and on the 15th day of October, 1964, the transcript was completed at a cost of $150.00; that to the knowledge and understanding of this affiant the defendants, Peter Landeis, Jr., and Tillie Landeis, are in difficult financial straits and could not pay for the cost of said transcript; that this affiant was unwilling to complete the appeal until such time as he had at least been paid for the money that he was required to expend for the transcript herein; that it was not until the fall of 1965 that arrangements were made for the completion of this appeal; that this affiant believes that there is a bona fide cause for appeal to the Supreme Court and that justice can only be served by a final determination of this matter on appeal to the Supreme Court.

The trial court, in its memorandum decision, stated that under Rule 6(b), N.D.R.Civ.P., it could, in its discretion, for good cause enlarge the time within which the statement of the case could be settled.

We are inclined to believe that the trial court's authority to extend the time within which the statement of the case may be settled is derived, not from Rule 6(b), N.D.R.Civ.P., but from § 28--18--06(1), N.D.C.C. However, we agree with the trial court that such an application must be made upon a showing of good cause, that the determination of whether good cause has been shown is for the trial court to make, and that unless the decision of the trial court indicates an abuse of discretion, it will not be reversed on appeal.

In Schriock v. Schriock, a decision rendered by this court in 1964, we said:

In construing pertinent sections of the Compiled Laws of the Territory of Dakota, 1887, in Johnson v. Northern Pac. R. Co., 1 N.D. 354, 48 N.W. 227; sections of the Revised Codes of 1905 in Smith v. Hoff, 20 N.D. 419, 127 N.W. 1047; sections of the Compiled Laws of 1913 in Millers' & Traders' State Bank v. National Fire Ins. Co., 55 N.D. 149, 212 N.W. 834, 835; and the present statutes in Mulhauser v. Becker, 76 N.D. 402, 37 N.W.2d 352, this court, in effect, has consistently found that the trial court's ruling on an application for settlement of the case after the statutory time for settlement thereof has expired, will not be disturbed on appeal except for abuse of discretion.

Schriock v. Schriock, 128 N.W.2d 852, 855 (N.D.1964).

The trial court, after reviewing the affidavit filed in support of the motion, found that good cause had not been shown, and accordingly denied the motion.

However, Mr. and Mrs. Landeis contend that good cause, although required to be shown under § 7666 of the Compiled Laws of 1913, need no longer be shown, because the adoption of the Revised Code of 1943 omitted this section therefrom, and the cross-reference table notes that it was 'superseded.' They argue:

'Thus, where once a specific statute required that 'good cause, in furtherance of justice' be shown, there on longer exists such a requirement and this Court has not passed upon the effect of the action of the legislature in omitting this requirement.

As the law now stands the time limit is 30 days or 'such further time as the court shall allow.'

We find no merit in this argument.

Section 7655, C.L. of 1913, set forth the requirements for securing a settlement of the statement of the case. The language used therein is almost identical with the language used in the pertinent part of § 28--18--06, N.D.C.C. The pertinent part of § 7655 reads as follows:

Within thirty days after the notice of the entry of judgment or the order to be reviewed, or such further time as the court shall allow, * * *

The predecessor of § 7655, C.L. of 1913, was § 7058, R.C. of 1905. It contained similar language.

It is our view that the Legislature, in repealing of 7666, C.L. of 1913, intended no change in the previous construction of § 7655, C.L. of 1913 (which was carried into N.D.R.C. of 1943 in § 28--1806, and which now is § 28--18--06, N.D.C.C.) and that it was merely to eliminate duplicative material. We therefore believe that it is still proper to require that good cause be shown before an extension of time is granted.

We have reviewed the affidavit and agree with the trial court's conclusion that it fails to establish good cause for extending the time for settling the statement of the case.

The burden is upon Mr. and Mrs. Landeis to show good cause why the motion for settlement of the statement of the case, made approximately 22 months after the notice of the entry of the judgment, should be granted.

Mr. and Mrs. Landeis, in arguing that the purposes of § 28--18--06 would...