Sanford v. Sanden, 10305
| Decision Date | 14 April 1983 |
| Docket Number | No. 10305,10305 |
| Parties | Adeline SANFORD and Hermoine Hammargren, Plaintiffs and Appellees, v. Kenneth C. SANDEN, Dora Hanson, and Petra O. Hanson, Defendants and Appellants. Civ. |
| Court | North Dakota Supreme Court |
Wickham Corwin, of Conmy, Feste, Bossart, Hubbard & Corwin, Fargo, for plaintiffs and appellees.
William Kirschner, Fargo, and DeLayne Nassif (argued), Fargo, for defendants and appellants.
This case involves an appeal from a judgment of the district court of Cass County in favor of the appellees, Adeline Sanford and Hermoine Hammargren, against the appellants, Kenneth C. Sanden, Dora Hanson, and Petra O. Hanson. Sanford and Hammargren filed a motion to dismiss the appeal because the appellants failed to order a transcript of the proceedings in accordance with Rule 10(b), N.D.R.App.P. Sanden and the Hansons filed a motion for a court order requiring the receiver appointed by the district court to release sufficient funds to pay for a transcript of the malicious-prosecution proceedings. The motion to dismiss is denied and the case is remanded to the district court with direction to enter an order requiring the receiver to release sufficient funds to pay the cost of the transcript.
Sanford and Hammargren commenced an action against Sanden and Dora Hanson seeking damages for malicious prosecution. At issue was the propriety of will-contest proceedings in which Sanden filed for probate a will executed by Marius Honerud which effectively disinherited his two daughters (Sanford and Hammargren) and left the bulk of his estate to Sanden. The will-contest proceedings resulted in a determination that Honerud lacked testimentary capacity when he executed the contested will and that the contested will had been obtained by Sanden through fraud and undue influence. 1
A short time after the commencement of the malicious-prosecution action, Sanford and Hammargren filed a motion for the appointment of a receiver to take charge of and preserve certain property belonging to Sanden and Dora Hanson pending the final outcome of the proceedings. 2 The district court granted this motion and appointed Fargo National Bank and Trust Company as the receiver.
Following a trial on the merits, the jury returned a special verdict finding that the will-contest proceedings had been maliciously prosecuted and awarding compensatory and punitive damages to Sanford and Hammargren. A special verdict was also returned finding that Dora Hanson had fraudulently conveyed certain real property to Petra Hanson. Judgment was entered in accordance with the verdict and subsequent post-trial motions by Sanden and the Hansons for a directed verdict, new trial, and judgment notwithstanding the verdict were denied. Sanden and the Hansons then filed this appeal which is the subject of Sanford and Hammargren's motion to dismiss. Subsequently, the appellants filed a motion with this court for an order requiring the receiver to release sufficient funds to pay the cost of securing a transcript.
Sanford and Hammargren's motion to dismiss is based on the appellants' failure to order a transcript pursuant to Rule 10(b), N.D.R.App.P. 3 The appellants contend they have no money with which to pay for a transcript. They claim that all their assets are being held in the receivership created by order of the district court in response to Sanford and Hammargren's motion. The judgment in the malicious-prosecution action decreed that the receivership is to "continue in full force and effect for so long as may be necessary to fully carry out all the provisions of this judgment, unless otherwise sooner terminated by further order of this court."
The appellants raise numerous issues on appeal, the majority of which concern the sufficiency of the evidence to sustain various findings by the jury in the special verdict. Our review of questions of fact is limited to consideration of whether or not there is substantial evidence to sustain the jury verdict. Farmers Co-op. Elevator of Cavalier v. Lemier, 328 N.W.2d 833 (N.D.1982); Powers v. Martinson, 313 N.W.2d 720 (N.D.1981). There is no doubt that a transcript of the trial proceedings is necessary to accomplish our review in the instant case. Because they filed the motion to dismiss the appeal, Sanford and Hammargren obviously agree that a transcript is necessary. Without a transcript, it is impossible for us to determine whether or not substantial evidence exists to sustain the jury verdict. The appellants should have ordered a transcript of the proceedings for their appeal in accordance with Rule 10(b), N.D.R.App.P.
Although we conclude that Sanden and the Hansons should have secured the transcript of the malicious-prosecution proceedings for their appeal in accordance with Rule 10(b), N.D.R.App.P., their failure to do so does not necessarily require us to grant Sanford and Hammargren's motion to dismiss the appeal. Failure of an appellant to take any steps 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. Rule 3(a), N.D.R.App.P. We have previously indicated that we believe it is important to reach the merits of a case wherever possible. See, e.g., Spletto v. Bd. of Cty. Com'rs, Stark Cty., 310 N.W.2d 726 (N.D.1981). The following factors should be considered in determining whether or not this court, in its discretion, should dismiss an appeal:
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