Schriock v. Schriock, 8064

• Decision Date: 08 June 1964
• Docket Number: No. 8064,8064
• Citation: 128 N.W.2d 852
• Parties: Lorentine SCHRIOCK, Plaintiff and Appellant, v. William SCHRIOCK, Ruth Schriock, and Schriock Construction, Inc., Defendants and Respondents.
• Court: North Dakota Supreme Court

Page 852

128 N.W.2d 852

Lorentine SCHRIOCK, Plaintiff and Appellant, v. William SCHRIOCK, Ruth Schriock, and Schriock Construction Inc., Defendants and Respondents.

No. 8064.

Supreme Court of North Dakota.

June 8, 1964.

Syllabus by the Court

1. An application for settlement of a statement of the case after the time limited therefor by the statute has expired is addressed to the sound judicial discretion of the trial court, and its ruling will not be disturbed unless the record presented on appeal shows that the trial court abused its discretion.

2. In litigation between private parties where ownership of property was in issue, it was proper for the district court, upon request of a plaintiff, under Rule 34 of the North Dakota Rules of Civil Procedure, Rule 34 of the Rules of Federal Procedure, and the applicable state and federal statutes, to order a defendant to produce and permit the plaintiff at the plaintiff's expense to inspect and copy tax returns of the defendant which contained self-employment information pertinent to the issue.

3. A court of equity will on a proper occasion disregard the legal fiction of separate corporate existence.

4. Where a first wife obtained a money judgment based on a divorce judgment requiring support payments which were not paid, the entire arrangement between the divorced husband and his second wife (wherein they placed and retained in the second wife's name and in a corporation subsequently created, title to property, part of which was acquired in a business owned and operated by the divorced husband before his second marriage and part of which was acquired in the same business, managed and controlled by the divorced husband after his second marriage) was merely a device to avoid the payment of the judgment and thus was frudulent as to the first wife.

Ilvedson, Pringle, Herigstad & Meschke, Minot, for plaintiff and appellant.

Waldron & Kenner, Minot, for defendants and respondents.

ERICKSTAD, Judge (On Reassignment).

This is an appeal by the plaintiff, Lorentine Schriock, from a judgment dated July 6, 1961, dismissing the plaintiff's action. A trial de novo is demanded.

The defendants and respondents have moved to dismiss the appeal on the grounds 'that the motion for settlement of the case made herein was untimely and not within the period prescribed by statute; that it was not within the time permitted under the two additional periods granted ex parte by the lower court and that the period for such appeal can not be enlarged or extended upon timely objection thereto.'

A similar motion to dismiss the appeal was first made in the district court, where the court denied the motion and issued its certificate settling the statement of the case on October 31, 1962.

The district court, acting ex parte, had twice extended the time for securing a settled statement of the case, the last extension being to May 31, 1962, to permit the court reporter time in which to prepare a transcript of the testimony. The transcript was prepared and placed in the hands of the attorneys for the appellant on or about May 14, 1962, but the attorneys for the appellant failed to secure a further extension of the time to prepare the statement of the case.

No reason was given by the district court in denying the motion to dismiss the appeal, but apparently the court accepted the explanation made by counsel for the appellant that the failure to secure an additional extension of time to prepare the statement of the case was because said counsel 'believed that there was an agreement between counsel that the settled Statement of the Case and certifying the record to the Supreme Court, would be held in abeyance until thirty (30) days or so after appellant's brief was prepared and served upon the defendants, in order to give the attorneys for the defendants the benefit of having the complete trial record available in order to prepare their reply brief.'

The affidavit of the respondents' attorney denies any such agreement.

The sections of our law pertinent to this problem read 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;

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'4. When such transcript and other matters are so certified by the judge and filed, they shall become a part of the judgment roll and shall be known as the statement of the case.' North Dakota Century Code.

We believe that a decision of this court rendered in 1948 settles this question in favor of the appellant:

'* * * The court is authorized to extend the time within which a statement of case may be settled, RC 1943, Sec. 28-1806. Applications for extension of time for settlement of a statement of case are not jurisdictional and orders extending time of settlement may be made ex parte. Johnson v. Northern Pac. R. Co., 1 N.D. 354, 48 N.W. 227; Bucholz et al. v. Harthun, 61 N.D. 547, 239 N.W. 161. And where a statement of case is settled after the time limited without an extension of time having been granted the order of settlement itself operates to extend the time for settlement. Johnson v. Northern Pac. R. Co., supra. * * *

'* * * Statutes permitting extensions of time for settlement of statement of case or for settlement after the time has expired or for amendment of the statement of case where there are material omissions are remedial in their nature and should be liberally construed to the end that an appeal may be determined on its merits. Smith v. Hoff, 20 N.D. 419, 127 N.W. 1047.' Muhlhauser v. Becker, 76 N.D. 402, 37 N.W.2d 352, at 359 and 360.

In Millers' & Traders' State Bank v. National Fire Ins. Co., 55 N.D. 149, 212 N.W. 834, 835, this court, in its syllabus, said:

'An application for settlement of a statement of the case after the time limited therefor by the statute has expired is addressed to the sound judicial discretion of the trial court, and its ruling will not be disturbed unless the record presented on appeal shows that the trial court abused its discretion. * * *'

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.

We do not find that the trial court abused its discretion in the instant case.

The merits of the appeal will now be considered.

On November 20, 1946, the plaintiff obtained a judgment in the State of Oregon which granted her a divorce from the defendant William Schriock and obligated him to make certain periodic payments to her. This judgment was renewed on September 15, 1956. The plaintiff, in March, 1957, obtained a judgment in North Dakota in the sum of $13,024, for payments due and unpaid on the Oregon judgment. In Schriock v. Schriock, N.D., 95 N.W.2d 577, this judgment was affirmed.

When execution of this judgment was returned unsatisfied, the plaintiff initiated proceedings supplementary to the execution, pursuant to Chapter 28-25 of the North Dakota Century Code.

Subsequent to the proceedings supplementary to the execution, the plaintiff brought an action in July, 1959, alleging, among other things, the existence of the 1957 judgment, that execution on the judgment had been returned unsatisfied, and that no part of the judgment had been paid.

Other allegations were as follows: that the defendant Ruth Schriock holds the registered title to certain trucks, tractors, and construction equipment used in a construction business; that the defendant William Schriock is and has been the real and equitable owner of an interest in said property and that he has received and enjoyed income and profits therefrom; and that said property was purchased and placed in the name of the defendant Ruth Schriock to be held by her for the use and benefit of her husband, William Schriock, for the purpose of defrauding the plaintiff, a creditor since 1947, by preventing the collection of the debt due by him to the plaintiff.

In conclusion, the plaintiff asked for the following relief:

'1. That the court issue its order, forbidding a transfer or other disposition of the trucks, tractors, and equipment until a sufficient opportunity is given to prosecute this action to judgment;

'2. That said trucks, tractors and equipment be decreed by this court to be held by the defendants, Ruth Schriock and Schriock Construction, in trust for the defendant, William Schriock;

'3. That said trucks, tractors and equipment be subject to the payment of plaintiff's judgment hereinabove described, together with interest thereon and the costs of this action;

'4. That the court issue its order appointing a receiver to take charge of said property and apply it on plaintiff's money...