State ex rel. Hjelle v. Bakke

• Decision Date: 26 October 1962
• Docket Number: No. 7992,7992
• Citation: 117 N.W.2d 689
• Parties: STATE of North Dakota ex rel. Walter R. HJELLE, State Highway Commissioner, Petitioner and Respondent, v. Norris C. BAKKE, William R. Pearce and Leonard Lindquist, as Members of the Board of Arbitration, and Swanson-Truax Construction Company, O. W. Swanson Construction Company, and Dakota Aggregate, Inc., as original petitioners for arbitration, Respondents and Appellants.
• Court: North Dakota Supreme Court

Page 689

117 N.W.2d 689

STATE of North Dakota ex rel. Walter R. HJELLE, State Highway Commissioner, Petitioner and Respondent, v. Norris C. BAKKE, William R. Pearce and Leonard Lindquist, as Members of the Board of Arbitration, and Swanson-Truax Construction Company, O. W. Swanson Construction Company and Dakota Aggregate, Inc., as original petitioners for arbitration, Respondents and Appellants.

No. 7992.

Supreme Court of North Dakota.

Oct. 26, 1962.

Syllabus by the Court

1. One who is not a party of record nor a representative nor privy to a party of record has no right of appeal.

2. The right to appeal in this State is entirely statutory. One attempting an appeal must show his right thereto.

3. Where there is no legal duty imposed on a board to appeal from adverse ruling of a court, the decision to appeal is discretionary.

4. Where an adverse decision to board of arbitrators is received in the district court in a proceeding where the board of arbitrators is a party, the decision to appeal is a discretionary one if it qualifies as an aggrieved party.

5. Where a motion is made by the respondent to dismiss an appeal taken in the name of a board of arbitrators on the ground appeal was not authorized by the board and it is shown the appeal was directed by two members of the board acting individually, no meeting of the board having been called or held to consider the question, there was no official decision to appeal and the motion will be granted.

Robert W. Mattson (succeeding Miles W. Lord), Minneapolis, Minn., and Vogel, Ulmer & Bair (succeeding John F. Lord), Mandan, for appellants.

Leslie R. Burgum, Atty. Gen., by David L. Milhollan, Sp. Asst. Atty. Gen., and Francis Breidenbach, Bismarck, for respondent.

TEIGEN, Judge.

We are met on the threshold of this appeal with a motion for dismissal. It is premised on four grounds: (1) That persons not parties to the action in the lower court cannot perfect an appeal from a decision of the lower court; (2) That Swanson-Truax Construction Company, a foreign corporation, has not been issued a certificate of authority by the Secretary of State of North Dakota and cannot maintain an action or proceeding in any court of this State; (3) That the board of arbitration, the parties of record in the lower court, have not taken or authorized the taking of the appeal; and (4) That the board of arbitration has not filed an undertaking on appeal.

The named appellants have undertaken to appeal from an absolute writ of prohibition issued out of the district court. The writ and all proceedings in the district court were directed against Norris C. Bakke, William R. Pearce, and Leonard Lindquist, as members of the board of arbitration.

A special or limited submission to arbitration was made by the parties to the arbitration. The parties to the arbitration are O. W. Swanson Construction Company, a partnership, and Swanson-Truax Construction Company, Inc., as prime contractors, and Dakota Aggregate Company, Inc., a subcontractor of Swanson-Truax Construction Company. The subcontractor maintains it has a claim against the State. For the purpose of enabling the subcontractor to arbitrate its dispute, the prime contractors, who have no separate claim, join in the claim of the subcontractor. The prime contractor Swanson-Truax Construction Company, Inc., has appointed the subcontractor as their attorney in fact and agent for the purpose of arbitration. The respondent in the arbitration proceeding is the State Highway Commissioner for the State of North Dakota. The three construction companies named Leonard Lindquist as their arbitrator. The commissioner named William R. Pearce as the State's arbitrator and the two arbitrators thus named, named Norris C. Bakke as the third arbitrator. The demand for arbitration was premised on statute, Section 24-02-26, N.D.C.C., and related statutes.

A submission to arbitration was prepared and the matter submitted. It provides as follows:

'The Petition in the above matter was served upon the State of North Dakota on the 19th day of July, 1960, and the Reply of the State of North Dakota was served upon the petitioners on the 28th day of July, 1960 and that the issues joined in said pleadings are the subject matter of a proposed arbitration proceeding.

'It is the position of the respondent that the Board of Arbitration lacks jurisdiction of the subject matter as alleged in the Petition and Reply and the respondent hereby submits to arbitration of the issue of jurisdiction only and consent to the entry of judgment by the District Court of the Fourth Judicial District in and for the County of Stutsman, State of North Dakota to that extent only.

'The Petitioners submits the entire matter to the Board of Arbitration, disputes the position of the Respondent and consents to the entry of judgment by the District Court of the Fourth Judicial District in and for the County of Stutsman, State of North Dakota.'

The board of arbitration called an investigation at which the parties presented their respective arguments, filed their respective briefs and on November 23, 1960, unanimously issued its award determining it had jurisdiction and ordered the case set for hearing on the merits. The order provides as follows:

'This matter coming on to be heard on the limited submission filed by the Attorney General challenging the jurisdiction of the Board of Arbitration herein to hear the case on its merits.

'Hearing was held in Room G-1 of the State Capitol, the Board consisting of Norris C. Bakke of Mayville, Chairman, and Members William R. Pearce of Bismarck and Leonard Lindquist of Minneapolis.

'Briefs having been filed and argument heard on the question of the Board's power and authority to assume jurisdiction, and the Board being fully advised in the premises has reached the conclusion that it does have jurisdiction to hear the case on its merits.

'Ordered that the case be set for hearing on the Merits next Monday, November 28 in Room G-1 at the State Capitol in Bismarck, at 10 A. M.'

On November 25, 1960, the State Highway Commissioner commenced a proceeding for a writ of prohibition entitled:

'State of North Dakota ex rel, A. W. Wentz, State Highway Commissioner,

Petitioner,

vs.

Norris C. Bakke, William R. Pearce and Leonard Lindquist, as Members of the Board of Arbitration,

Respondents.'

(A change of commissioner resulted in title change.)

The district court issued an alternative writ of prohibition ordering that 'the Respondents and each of them desist and refrain from any further proceedings in the arbitration proceedings * * *.' Following the hearing on the order to show cause, the alternative writ was made absolute. This appeal is attempted from the court's order and writ of prohibition.

A notice of appeal was served. It states that '* * * Norris C. Bakke, William R. Pearce, and Leonard Lindquist, as Members of the Board of Arbitration, and Swanson-Truax Construction Company, O. W. Swanson Construction Company, and Dakota Aggregate, Inc., as original petitioners for arbitration, * * *' appealed to the Supreme Court from the order and writ of prohibition entered by the district court.

With regard to the first ground of the motion for dismissal of the appeal, it appears from the record that the three named construction companies were not named as parties to the proceeding in the district court. Further, it appears they were not ordered to be made parties by the court and they made no attempt to intervene.

In resistance to the motion to dismiss the appeal on this ground, the three construction companies have filed with us the affidavits of Miles W. Lord, attorney at law of Minneapolis, Minnesota, and of John F. Lord, as local counsel, to the effect that they appeared and defended to proceeding in the lower court. They aver that they noted in the record their appearance on behalf of the three construction companies, as well as the board of arbitration. They argue that the three construction companies having appeared by attorney, the State made no objection to such appearance and is now estopped to contend the construction companies are not parties to the proceeding, that it was understood and agreed by all present that the construction companies were represented and were parties to the proceeding. No authority has been pointed out to us in support of this argument and we have found none. Only a partial transcript of the proceedings in the lower court is filed with the appeal. The partial transcript filed does not show the appearances. The record discloses the three construction companies were not served with process, were not named as parties in any of the papers in the proceeding, filed no formal return or appearance and made no attempt to be made parties by intervention. Therefore, they cannot be considered as parties to the action.

We determine that the motion to dismiss the appeal as to the three construction companies must be granted. The right to appeal is statutory and can be exercised only when authorized by the statute. In re Myrick v. McCabe, 5 N.D. 422, 67 N.W. 143; Whitney v. Ritz, 24 N.D. 576, 140 N.W. 676; Stimson v. Stimson, 30 N.D. 78, 152 N.W. 132; Torgerson v. Minneapolis, St. P. & S.S.M. Ry. Co., 51 N.D. 745, 200 N.W. 1013; Guenther v. Funk, 67 N.D. 543, 274 N.W. 839, 112 A.L.R. 428 and Hart v. Bye, N.D., 86 N.W.2d 635.

The three construction companies are not parties to the proceeding of record, neither are they representatives nor privies of a party of record, and have no right of appeal in the absence of a statute giving them such right. North Dakota has no such statute. Our statutes on appeal do not authorize one who is not a party of record to appeal. Sections 28-27-03, 28-27-04, 28-27-05 and 28-27-08, N.D.C.C.; Guenther v. Funk, supra, and Hart v. Bye, supra.

The second ground that the appeal must be dismissed as to Swanson-Truax Construction Company, a foreign corporation, because it has not been issue a...