Reliance Ins. Co. v. Public Service Commission

• Decision Date: 17 February 1977
• Docket Number: No. 9253,9253
• Court: North Dakota Supreme Court
• Parties: RELIANCE INSURANCE COMPANY, a Minnesota Corporation, Appellant, v. PUBLIC SERVICE COMMISSION, Appellee, and American Grain & Cattle, Inc., Appellee. Civ.

Page 918

250 N.W.2d 918

RELIANCE INSURANCE COMPANY, a Minnesota Corporation, Appellant, v. PUBLIC SERVICE COMMISSION, Appellee and American Grain & Cattle, Inc., Appellee.

Civ. No. 9253.

Supreme Court of North Dakota.

Feb. 17, 1977.

Syllabus by the Court

1. The Rules of Civil Procedure generally govern procedures relating to appeals to district court from decisions of administrative agencies except where the provisions of Chapter 28--32, NDCC, are inconsistent with the rules, in which case the statute governs. Rule 81(b), NDRCivP.

2. The Rules of Civil Procedure relating to appeals from decisions of administrative agencies are not inconsistent with the provisions of Chapter 28--32, NDCC, and accordingly a notice of appeal may be served by mail. Rule 5(b), NDRCivP.

3. Service by mail of notice of appeal from an administrative agency decision is completed upon mailing rather than upon receipt of notice. Rule 5(b), NDRCivP.

4. Statutes within the same chapter should be construed in harmony whenever possible.

5. The statutory procedures followed by an administrative agency in giving notice may also be used by parties appearing before the same agency to give notice on the same or related subject matter.

6. The term 'party,' as used in the Administrative Agencies Practice Act, also means real party in interest, as well as an adverse party.

7. An adverse party, on matters relating to an appeal, is not determined by the title of the proceedings but rather by whether modification or reversal of the judgment appealed from will prejudicially affect the party.

Degnan, McElroy, Lamb, Camrud, Maddock & Olson, Ltd., Grand Forks, for appellant; argued by James L. Lamb, Grand Forks.

Jon M. Arntson, Sp. Asst. Atty. Gen., West Fargo, for Public Service Commission.

SAND, Justice.

This is an appeal from the order of the district court, Fourth Judicial District, Burleigh County, dismissing the appeal taken by Reliance Insurance Company from the decision of the Public Service Commission.

Residents of North Dakota lodged and filed a complaint against American Grain & Cattle, Inc., a Texas cooperative (hereinafter AGC--Tex), a roving grain and hay buyer. On 24 September 1975 a hearing was begun before the Public Service Commission's hearing examiner. Special Assistant Attorneys General appeared on behalf of the Public Service Commission and on behalf of the complainants. Reliance Insurance Company (hereinafter Reliance) was represented by its attorneys, but no appearance was made by AGC--Tex. However, an attorney appeared on behalf of American Grain & Cattle, Inc., a North Dakota cooperative (hereinafter AGC--ND), and the attorneys for the alleged guarantor of the bond also appeared.

The Public Service Commissions issued its findings of fact, conclusions of law, and order on the 18th day of February, 1976, and served them on the parties by placing them in the mail on February 20, 1976.

The PSC mailed a copy of its findings of fact, conclusions of law, and order to Mr. L. E. Creel III, and James S. Mahon, the attorney for the court-appointed receiver of AGC--Tex. ¹ Mr. Creel had been representing AGC--Tex at the proceedings before the bankruptcy court, but no showing has been made in the record before the PSC that Creel was hired by or vested with authority to represent AGC--Tex on the matter before the PSC.

Reliance Insurance Company (the appellant) appealed from the Public Service Commission decision and served its notice of appeal and specifications of error by mailing a copy on March 22, 1976, to: the attorney representing AGC--ND; the attorney representing the guarantor of the bond Morris Jaffe; the Special Assistant Attorneys General representing the Public Service Commission; the Public Service Commission; and the Attorney General. No notice of appeal was mailed by Reliance to the attorney representing AGC--Tex. It also filed the notice of appeal and specifications of error, along with the affidavit of mailing, with the clerk of the district court for Burleigh County on March 22, 1976.

The district court dismissed the appeal of Reliance on the basis that AGC--Tex was a party to the proceedings before the PSC but had not been served with the notice of appeal, and that the notice of appeal was not served timely as to those who were served.

Reliance then appealed to this court from the district court order dismissing the appeal.

The principal issues on appeal are whether or not the notice of appeal was timely and whether or not the failure to serve the notice of appeal on AGC--Tex was jurisdictional so as to nullify the appeal.

The Special Assistant Attorneys General for the PSC and the claimants contended that the notice of appeal was not timely and that if mailing was used, notice would have to be received by the parties within thirty days. The PSC also contended that because § 28--32--15, North Dakota Century Code, is silent as to the type of service that may be employed or when service by mail is completed, it necessarily means that service, if by mail, is effective only upon receipt of the notice by the PSC and the parties and that the PSC did not receive the notice of appeal, by mail, until after thirty days had expired.

The pertinent provisions of § 28--32--15, N.D.C.C., relating to the appeal are as follows:

'. . . Such appeal shall be taken by serving a notice of appeal and specifications of error specifying the grounds on which the appeal is taken, upon the administrative agency concerned, upon the attorney general or an assistant attorney general, And upon all the parties to the proceeding before such administrative agency, and by filing the notice of appeal and specifications of error together with proof of service thereof, and the undertaking herein required, with the clerk of the district court to which such appeal is taken. . . .' (Emphasis added.)

We find it necessary to examine the rules of procedure which the parties argued pro and con as to their application.

Rule 1(a) of the Rules of Appellate Procedure was adopted by this court effective March 1, 1973, and in substance provides that the Rules apply only to appeals from district courts to the Supreme Court. The Appellate Rules, therefore, do not apply to the appeal in question here.

The Rules of Civil Procedure, 72 through 76, which would have dealt with appeals, were left blank, with the following notation: 'Reserved for reference and possible future use. See N.D. Rules of Appellate Procedure.'

Rule 81(a), North Dakota Rules of Civil Procedure, provides:

'The statutory proceedings listed in Table A are excepted from these rules insofar as they are inconsistent or in conflict with the procedure and practice provided by these rules.'

An examination of Table A discloses that Chapter 28--32, N.D.C.C., the Administrative Agencies Practice Act, is not listed among the statutes, which implies that Chapter 28--32 is not exempt from the Rules of Civil Procedure.

Rule 81(b), N.D.R.Civ.P., entitled 'Appeals to district courts,' provides as follows:

'These rules do not supersede the provisions of statutes relating to appeals or to review by the district court, but shall govern procedure and practice relating thereto insofar as these rules are not inconsistent with such statutes.'

By comparison, in the Rules of Evidence, Rule 1101(d)(3), specifically provides that the Rules of Evidence do not apply to proceedings under Chapter 28--32, N.D.C.C., the Administrative Agencies Practice Act.

Rule 5, of the Rules of Civil Procedure, as is pertinent, provides that every order and pleading, etc., shall be served upon each of the parties. If further provides that service need not be made on parties in default except if new or additional claims for relief against them are asserted, at which time they must be served in the manner provided for in Rule 4, N.D.R.Civ.P.

Rule 5(b), N.D.R.Civ.P., provides how service is to be made. It provides that service can be made upon the attorney for the party unless the court otherwise orders. It also provides that service may be made by mailing to his attorney at his last known address. Rule 5(b) also provides for other methods of service, and concludes with the following: 'Service by mail is complete upon mailing.'

Rule 5(d), N.D.R.Civ.P., as to filing, provides that whenever the papers are required to be filed it means filed with the clerk of court, unless otherwise provided by statute or by order of the court at or prior to the time of filing of the notice. This rule also provides that if the party fails to comply with the filing requirement the court may order the service to be of no effect.

Rule 6, N.D.R.Civ.P., pertains to time and, as is material, provides that the day of the act from which the period begins to run shall not be included. It further provides that:

'The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a legal holiday.'

The PSC findings of fact, conclusions of law, and order were mailed to the parties appearing at the hearing on February 20, 1976. February 1976 and 29 days. The thirty days, in accordance with the rule and case law, began to run on the 21st day of February. The 30th day fell on March 21, a Sunday, so that in accordance with Rule 6, N.D.R.Civ.P., the appealing party had one additional day, bringing the end of the period to March 22. There is no dispute that the notice of appeal and specifications of error were mailed on March 22, 1976.

Reliance also contended that under Rule 6(e), N.D.R.Civ.P., an additional three days should be added to the prescribed time for filing and serving notice of appeal. However, because we have reached the conclusion that service was timely made, we are not required to consider this rule.

Section 28--32--13, N.D.C.C., provides, in part, as follows:

'. . . The agency shall give notice...