Latendresse v. Latendresse, 9583

• Decision Date: 28 June 1979
• Docket Number: No. 9583,9583
• Citation: 283 N.W.2d 70
• Parties: Albert LATENDRESSE, Plaintiff/Appellee, v. Orville LATENDRESSE a/k/a Orville J. Latendresse and Ruth Latendresse, Defendants/Appellants. Civ.
• Court: North Dakota Supreme Court

Page 70

283 N.W.2d 70

Albert LATENDRESSE, Plaintiff/Appellee, v. Orville LATENDRESSE a/k/a Orville J. Latendresse and Ruth Latendresse, Defendants/Appellants.

Civ. No. 9583.

Supreme Court of North Dakota.

June 28, 1979.

Charles D. Orvik Law Office, Rugby, for defendants and appellants; argued by Gene A. Nygaard.

McIntee Law Firm, Towner, for plaintiff and appellee; argued by Michael S. McIntee, Towner.

PAULSON, Justice.

Orville Latendresse and Ruth Latendresse ("Orville and Ruth"), defendants and appellants, have appealed to this court from a summary judgment of the McHenry County District Court. The plaintiff and appellee, Albert Latendresse ("Albert"), has moved to dismiss the appeal pursuant to Rule 31(c) of the North Dakota Rules of Appellate Procedure because of Orville and Ruth's failure to file their brief within the time prescribed by Rule 31(c); and pursuant to Rule 7, N.D.R.App.P., on the ground that Orville and Ruth failed to secure a cost bond or a supersedeas bond.

Albert commenced an action against Orville and Ruth for the sum of $4,000, together with interest thereon as evidenced by a promissory note dated February 9, 1963. The summons and complaint were served upon Orville and Ruth on June 13, 1978, by the sheriff of McHenry County. Orville and Ruth interposed an answer and a counterclaim on their own behalf, admitting the execution of the note but denying that demand for payment had been made or that they have refused to pay; together with a counterclaim for a promissory note executed by Albert due in 1955 for the wintering of cattle, for damages to their home caused by a fire in Albert's trailer, for loss of records to substantiate a $400,000 U.S.A. Wildlife depredation suit, for a $300,000 Pioneer State Bank breach-of-contract fund, and for other miscellaneous claims.

Albert interposed a timely reply to the counterclaim.

Albert's attorney served a request for admission, pursuant to Rule 36 of the North Dakota Rules of Civil Procedure, upon Orville and Ruth on August 2, 1978.

Albert's attorney served a motion for summary judgment, pursuant to Rule 56, N.D.R.Civ.P., on Orville and Ruth on September 29, 1978. The motion was based upon two grounds: (1) that Orville and Ruth have failed to answer requests for admission as required by Rule 36, N.D.R.Civ.P.; therefore, they have admitted all the material allegations of the complaint; and (2) that the allegations of the counterclaim not otherwise explained, do not constitute a claim upon which relief can be granted. The answers to Albert's requests for admission were not prepared by Orville on behalf of Ruth and himself until October 10, 1978. The record does not reveal when the answers to the requests for admission were served on Albert, but they were filed in the office of the clerk of the district court of McHenry County on October 13, 1978. The hearing on the motion for summary judgment was held on October 11, 1978. The court issued its memorandum opinion on October 26, 1978. Summary judgment was entered on November 15, 1978, from which Orville and Ruth appealed on November 24, 1978. Orville and Ruth then prepared and filed a notice of hearing to set a supersedeas bond. The notice was dated November 24, 1978, and the date of hearing was set for November 28, 1978, at Rugby. The district court subsequently issued its order setting the supersedeas bond at $7,000 and further ordered, upon the furnishing of the bond, that a stay of execution would be issued.

Albert prepared and filed a motion for dismissal of the appeal on the grounds heretofore set forth. We are confronted with what action should be taken when Orville and Ruth have failed to comply with Rule 31 and Rule 7, N.D.R.App.P. It is therefore necessary to consider the guidelines set forth in Rule 3, N.D.R.App.P. the pertinent part of which states:

"RULE 3 APPEAL AS OF RIGHT HOW TAKEN

"(a) Filing the notice of appeal. . . . Failure of an appellant to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal, but is ground only for such action as the court deems appropriate, which may include dismissal of the appeal."

The Rules of Appellate Procedure became effective on March 1, 1973, and have been in full force and effect since that date. The Supreme Court, in determining what action should be taken in the instant case with reference to a motion for dismissal, has the benefit of a number of decisions on the subject which have been issued by this court. Each of these cases has been decided upon the particular circumstances which existed therein. ¹

The North Dakota Supreme Court has enunciated a rule when motions to dismiss have been denied that reveals a reluctance on the part of the court to dismiss appeals, because the court generally desires to reach the merits of a case. Dismissal is granted only when valid reasons are not present to excuse the delay (South v. Nat. R. R. Passenger Corp. (AMTRAK), 260 N.W.2d 212 (N.D.1977)); the moving party would be prejudiced by the delay (Wagener, Inc. v. William Clairmont, Inc., 211 N.W.2d 751 (N.D.1973)); for gross disregard of the Rules of Appellate Procedure (City of Jamestown v. Rolfzen, 238 N.W.2d 661 (N.D.1976)); and failure to file briefs for three and one-half years since the filing of the notice of appeal (McLean v. Jones, 247 N.W.2d 469 (N.D.1976)).

Orville and Ruth's failure to file their brief within the time prescribed by Rule 31(c), N.D.R.App.P., does not mandate this court to dismiss the appeal.

In considering Rule 31(c), N.D.R.App.P., we stated, in State v. Packineau, 270 N.W.2d 336, 337 (N.D.1978):

"Failure to file the appellant's brief within the time specified in Rule 31(c), N.D.R.App.P., does not require that the appeal be dismissed. Rather, the rule provides that if the appellant fails to file his brief within the time specified the appellee may move for dismissal. The determination whether to dismiss the appeal for failure to file the brief rests within the discretion of this court. See, e. g., Nodak Mutual Ins. Co. v. Loeffler, 225 N.W.2d 286 (N.D.1974)."

This court, in Tower City Grain Co. v. Richman, 232 N.W.2d 61, 64 (N.D.1975), stated:

"Tower City Grain argues that the service of an undertaking on appeal or deposit in lieu thereof is jurisdictional and that the appeal should be dismissed. We do not agree. Good faith service of notice of appeal confers jurisdiction, and thereafter this court may permit the appeal to be perfected. In re Guardianship of Frank, 128 N.W.2d 355 (N.D.1964). Further, Rule 3(a), N.D.R.App.P., states that the 'failure of an appellant to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal, but is ground only for such action as the court deems appropriate, which may include dismissal of the appeal.'

"Because it is the preference of this court to decide cases on their merits rather than on technicalities, we...