Lang v. Bank of North Dakota, 10947

• Citation: 377 N.W.2d 575
• Decision Date: 21 November 1985
• Docket Number: No. 10947,10947
• Parties: Ernest R. LANG, Plaintiff and Appellant, Rosemary E. Lang, (deceased), Plaintiff, v. BANK OF NORTH DAKOTA, Defendant and Appellee. Civ.
• Court: United States State Supreme Court of North Dakota

Page 575

377 N.W.2d 575

Ernest R. LANG, Plaintiff and Appellant, Rosemary E. Lang, (deceased), Plaintiff, v. BANK OF NORTH DAKOTA, Defendant and Appellee.

Civ. No. 10947.

Supreme Court of North Dakota.

Nov. 21, 1985.

Ernest R. Lang, pro se.

Gary Bauer, Asst. Atty. Gen., (argued) and Thomas B. Tudor, Bismarck, for defendant and appellee.

MESCHKE, Justice.

We consider whether an appeal can be taken more than 10 months after entry of a final order, which denied a motion to enjoin a foreclosure by advertisement, where no notice of entry of the order was given. We hold that actual knowledge of entry of the order, where clearly evidenced in the record, commences the running of the time for appeal. We also hold that this belated effort to invoke judicial forbearance under the "confiscatory price" provisions of Section 28-29-04, N.D.C.C., is not sufficiently worthy to outweigh the policy of finality of judicial decisions so as to permit the extension of the time for filing the appeal in this case. Accordingly, we grant the motion to dismiss this appeal.

On April 4, 1977, Ernest and Rosemary Lang ¹ borrowed $80,000 from the Bank of North Dakota and executed a note and mortgage on their farm in return for the loan. Lang subsequently defaulted on the note and, on February 10, 1984, the Bank served him with a notice of intention to foreclose the mortgage. For six consecutive weeks, beginning on March 26, 1984, the Bank published a notice of sheriff's sale in The Bismarck Tribune advertising that the farm would be sold on May 11, 1984. The Bank delivered a copy of the notice of sale to Lang on April 12, 1984.

On May 9, 1984, Lang filed a motion with the district court requesting it to enjoin the foreclosure by advertisement pursuant to Section 35-22-04, N.D.C.C. ² Lang's motion was accompanied by an affidavit asserting that he had "one or more legal counterclaims or valid defenses to the collection of the whole or of a part of the amount claimed due," including that his farm was "worth in excess of the debt to the Bank of North Dakota and a foreclosure sale would result in the confiscation of his property and the loss of his livelihood" and that he "has been faced with costs of production that exceed the prices received for his agricultural products." Lang requested that a foreclosure by action be filed by the Bank so that he could present his defenses. On May 10, 1984, Lang filed a supplemental affidavit with the district court asserting that he "never knew that there was a recourse to foreclosure by advertisement until he conferred with Mr. Folmer at the Kist Livestock Sales on the afternoon of May 3, 1984," and that after reading the file of Folmer v. State, 346 N.W.2d 731 (N.D.1984), he believed his case was a duplicate of that case.

On May 11, 1984, the district court denied Lang's motion because it was not filed within 30 days of the Bank's service of notice of intention to foreclose by advertisement. The sale was held as scheduled, and the Bank purchased the property.

On June 11, 1984, Lang filed an application for a writ of mandamus requesting this Court to invoke its original jurisdiction and compel the district court to enjoin the sale. We denied Lang's application because he had failed to meet the criteria for this Court to exercise its supervisory jurisdiction. Lang v. Glaser, 359 N.W.2d 884 (N.D.1985). We noted that Lang had failed to present circumstances tantamount to a denial of justice and that he had a right to appeal the district court's decision but chose not to pursue that remedy. Lang v. Glaser, supra, 359 N.W.2d at 886.

On March 27, 1985, Lang filed a notice of appeal from the district court's May 11, 1984 order denying his motion to enjoin the foreclosure by advertisement.

The Bank has moved to dismiss Lang's appeal because it was not filed within the time limits of Rule 4(a), N.D.R.App.P. Rule 4(a) provides, in part, as follows:

"In a civil case the notice of appeal required by Rule 3 shall be filed with the clerk of the trial court within 60 days of the date of the service of notice of entry of the judgment or order appealed from....

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"Upon a showing of excusable neglect, the trial court may extend the time for filing the notice of appeal by any party for a period not to exceed 30 days from the expiration of the time otherwise prescribed by this subdivision. Such an extension may be granted before or after the time otherwise prescribed by this subdivision has expired; but if a request for an extension is made after such time has expired, it shall be made by motion with such notice as the trial court shall deem appropriate." [Emphasis added.]

The emphasized language reflects that, under our rules, ³ the time for appeal does not commence to run until service of notice of entry of the judgment or order appealed from. The responsibility to serve the notice and commence the period for appeal is upon counsel for a prevailing party and the time for appeal technically does not begin to run until the notice is served. See Matter of Estate of Erickson, 368 N.W.2d 525, 528 (N.D.1985); In the Matter of Alf J. Bo, 365 N.W.2d 847, 850 (N.D.1985).

The record before us does not show that Lang was served with a notice of entry of the order denying the motion to enjoin foreclosure by advertisement. However, the record clearly reflects that Lang had actual knowledge of entry of the order because he filed an application to this Court for a writ of mandamus on June 11, 1984 seeking to reverse the order.

In Klaudt v. Klaudt, 156 N.W.2d 72 (N.D.1968), we held that the purpose of requiring service of written notice of entry of a judgment or order was fulfilled when the appealing party had actual knowledge of the entry of judgment which, in that case, was clearly established by a motion to vacate that judgment. We held that although the record did not disclose that the appealing party had been served with notice of entry of judgment, the time for appeal commenced when the appealing party had actual knowledge of entry of the judgment. Klaudt v. Klaudt, supra, 156 N.W.2d at 76. See also, Cline v. Roemer, 97 Idaho 666, 551 P.2d 621 (1976); Matter of Estate of Herrmann, 677 P.2d 594 (Nev.1984). We reaffirm our decision in Klaudt v. Klaudt, supra, that, even though the record does not reflect service of a notice of entry of the judgment or order, actual knowledge of entry of a judgment or order commences the running of the time for appeal where the actual knowledge is clearly evidenced in the record.

We conclude that the time for appeal began to run on June 11, 1984, when Lang had actual knowledge of entry of the order as evidenced by his filing an application for writ of mandamus in this Court. Therefore, Lang's appeal is untimely under Rule 4(a), N.D.R.App.P.

Nevertheless, Lang asserts that this Court should not dismiss his appeal under Section 28-29-04, N.D.C.C., which provides:

"28-29-04. Power of courts when prices are confiscatory.--Until the price of farm products produced in this state shall rise to a point to equal at least the cost of production, in comparison with the price of other commodities in general, entering into the business of agriculture, the supreme court of this state and all district and county courts in this state shall have power, when it is deemed for the best interests of litigants, to extend the time for serving and filing all papers requisite and necessary for the final determination of any cause. Any such court, in like manner, may stay the entry of judgment or the issuance of execution thereon, or may defer the signing of any order for judgment, or may defer terms of court, whenever in the judgment of the court the strictly legal procedure in any cause will confiscate or tend to confiscate the property of any litigant by forcing the sale of agricultural products upon a ruinous market." [Emphasis added.]

That section and Sections 28-29-05 and 28-29-06, N.D.C.C., ⁴ were adopted by our legislature in 1933 as part of a comprehensive response to a well documented agricultural and economic crisis. Vogel, The Law of Hard Times: Debtor and Farmer Relief Actions of the 1933 North Dakota Legislative Session, 60 N.D.L.Rev. 488 (1984); see also Robinson, History of North Dakota, pp. 396-419 (1966). During the 1933 Legislative Session, various bills were proposed and adopted to deal with issues of foreclosure, farm debt, farm-debtor relief, and low farm prices. The actions taken during that legislative session included bills authorizing a grain embargo, extending the time period for the right of redemption, prohibiting deficiency judgments, and authorizing courts to delay foreclosures while farm prices were below the cost of production. Unlike other depression-era laws enacted during the 1933 Legislative Session, Sections 28-29-04 through 28-29-06, N.D.C.C., have never been repealed.

In Folmer v. State, 346 N.W.2d 731 (N.D.1984), we held that the "confiscatory price defense" was a sufficient legal counterclaim or other valid defense to enjoin foreclosure by advertisement, thereby requiring foreclosure by an action rather than foreclosure by advertisement. However, we pointed out that the "confiscatory price defense" is not an absolute defense against foreclosure, but merely gives the court discretionary power to delay foreclosure proceedings during periods of economic hardship. In Heidt v. State, 372 N.W.2d 857 (N.D.1985), we concluded that a mortgagor alleging the "confiscatory price defense" is entitled to an injunction as a matter of law, thereby forcing the mortgagee bank to proceed by action rather than foreclosure by advertisement. We held that the district court abused its discretion in denying the Heidts' motion to enjoin foreclosure by advertisement. These cases reflect the viability of the "confiscatory price defense" as a defense available to a mortgagor.

Does Section 28-29-04, N.D.C.C., which permits the extension of time for serving and filing "all...