Spletto v. Board of County Com'rs, Stark County, 9998

• Decision Date: 05 October 1981
• Docket Number: No. 9998,9998
• Parties: Harold SPLETTO, Bea Spletto, Harry Stroh, Clementine Stroh, Randy Peters, and Karla Peters, Appellants Below and Appellants, v. BOARD OF COUNTY COMMISSIONERS, STARK COUNTY, North Dakota, Respondent Below and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 726

310 N.W.2d 726

Harold SPLETTO, Bea Spletto, Harry Stroh, Clementine Stroh Randy Peters, and Karla Peters, Appellants Below and Appellants, v. BOARD OF COUNTY COMMISSIONERS, STARK COUNTY, North Dakota Respondent Below and Appellee.

Civ. No. 9998.

Supreme Court of North Dakota.

Oct. 5, 1981.

John O. Holm, of Beyer & Holm, Dickinson, for appellants.

Owen K. Mehrer, State's Atty., and John J. Fox, Asst. State's Atty., Dickinson, for appellee; argued by Mr. Fox.

VANDE WALLE, Justice.

Appellants appealed from an order of the district court of Stark County dismissing their appeal from a decision of the Board of County Commissioners of Stark County (hereinafter "County"). We reverse.

Appellants, on September 23, 1980, filed a timely appeal from a zoning decision of the County but failed to file an undertaking at that time. The call of the calendar in the district court of Stark County was held on October 14, 1980. The County, on October 27, 1980, filed a motion to dismiss the appeal based upon the failure of the appellants to file an undertaking and upon the failure of the appellants to allege that they were aggrieved by the decision of the County. On November 4, 1980, the appellants filed an undertaking but the district court granted the County's motion to dismiss on March 23, 1981.

On this appeal the appellants contend that the district court should not have granted the County's motion to dismiss the appeal to district court for the reason that the undertaking is not a jurisdictional requirement of an appeal from a decision of the County and that the late filing of the undertaking should not defeat their right to appeal the zoning decision.

The right to appeal is statutory and may be exercised only when authorized by statute, and unless the statutory requirements as to service of notice of appeal and filing proofs of service are met, the district court acquires no jurisdiction over the appeal. See, e. g., Matter of Estate of Ewoniuk, 303 N.W.2d 553 (N.D.1981).

The right of the appellants to appeal the decision of the County is provided by Section 11-11-39, N.D.C.C. That section provides, in part:

"An appeal may be taken to the district court from any decision of the board of county commissioners by any aggrieved person. The appellant shall file an undertaking in such reasonable sum and with such sureties as may be approved by the county auditor, conditioned that the appellant will prosecute the appeal without delay and will pay all costs adjudged against the appellant in the district court. The undertaking shall be payable to the county."

The method of appeal is specified in Section 11-11-41, N.D.C.C., which provides, in part:

"An appeal from a decision of the board of county commissioners must be taken within thirty days after the decision of the board by serving a written notice of appeal upon one member of the board.... The county auditor, upon the filing of the undertaking, shall make out a complete transcript of the proceedings of the board relating to the matter in controversy, and shall deliver the same to the clerk of the district court."

Section 11-11-42, N.D.C.C., is also significant to this matter. It provides:

"An appeal from a decision of a board of county commissioners shall be filed on or before the first day of the term of the district court following the taking of the appeal, and the cause shall stand for trial at such term."

It is a commonly accepted rule of statutory construction that all statutes relating to the same subject matter are to be considered and given meaningful effect. See, e. g., Litten v. City of Fargo, 294 N.W.2d 628 (N.D.1980). Considering together the three statutes quoted above, it becomes apparent that in granting a right of appeal from a decision of a county the Legislature intended that such appeal be pursued promptly.

Because the county auditor is not authorized to prepare a transcript of the proceedings until the undertaking is filed and because the district court cannot hear an appeal from a decision of the County without a record of the proceedings, it is also apparent that the undertaking is necessary before the appeal may be heard by the district court. We agree with the appellants, however, that the undertaking is not jurisdictional to the appeal, unlike the filing of the notice of appeal itself. The statutes in this instance do not specify when the undertaking is to be filed, although it might be assumed that it is to be filed in conjunction with the notice of appeal in order to fulfill the legislative intent expressed in the above-quoted statutes. Nevertheless, we are reluctant to conclude that the filing of the undertaking is a jurisdictional prerequisite to the taking of the appeal unless the statute specifically so provides.

In In re Bjerke's Estate, 137 N.W.2d 225 (N.D.1965), this court considered the provisions of Section 30-26-03, N.D.C.C., governing an appeal to the district court from the county probate court. That statute provided that to effect an appeal the appellant must cause a notice of appeal to be...