Strom v. Giske

• Citation: 68 N.W.2d 838
• Decision Date: 17 December 1954
• Docket Number: No. 7352,7352
• Parties: Henry STROM, Effie Shearon, Ruth Stuart, Erwin Strom, Robert Strom and Mabel Kong, Plaintiffs and Appellants, v. Olaf GISKE, A. M. Fruh, Thomas W. Leach, Carl Thompson and Williams County, a Municipal Corporation and Sub-Division of the State of North Dakota, Defendants and Respondents.
• Court: United States State Supreme Court of North Dakota

Page 838

68 N.W.2d 838

Henry STROM, Effie Shearon, Ruth Stuart, Erwin Strom, Robert Strom and Mabel Kong, Plaintiffs and Appellants, v. Olaf GISKE, A. M. Fruh, Thomas W. Leach, Carl Thompson and Williams County, a Municipal Corporation and Sub-Division of the State of North Dakota, Defendants and Respondents.

No. 7352.

Supreme Court of North Dakota.

Dec. 17, 1954.

Rehearing Denied March 15, 1955.

Syllabus by the Court

1. Where on appeal to Supreme Court, notice of appeal and undertaking on appeal were served and filed in the office of the clerk of the district court within the time allowed for appeal, the fact that proof of service of the notice of appeal was not filed with the clerk of the district court until after the time for appeal had expired, did not affect the validity of the appeal.

2. Where only one of several appellants signed the undertaking on appeal as principal such undertaking is nevertheless sufficient when executed by sureties who justified as to their financial worth as required by law. Section 28-2709, NDRC 1943.

3. Laches does not arise from delay or lapse of time alone. A party against whom laches is sought to be invoked must be actually or presumptively aware of his rights and fail to assert them against a party who has in good faith permitted his position to become so changed that he cannot be restored to his former state.

4. Where, in a notice of expiration of the period of redemption from tax sale, land is described as being in Range 95 whereas it actually is situated in Range 96, the description is fatally defective and a county deed issued pursuant to such defective notice is void.

5. In the instant case, for reasons stated in the opinion it is held, that the defendants, claiming title to lands under a void tax deed, have failed to establish the defense of laches against the claim of the plaintiffs who are the legal owners of said lands.

6. Where plaintiffs bring an action to quiet title in which action the county is made a party defendant and the validity of a tax deed executed by the county is challenged and held void, the plaintiffs are required by Section 57-4510, 1953 Supp. NDRC 1943, to make a deposit in the amount of all delinquent and unpaid taxes on said property, including penalty and interest, plus taxes paid thereon by the purchaser from the county as determined by the trial court; and a formal demand by the county for judgment in such amount is not necessary. Where no such deposit is made the case will be remanded to the trial court with directions to make a determination of the amount of deposit required by the statute.

Swendseid & Bekken, Stanley, N. D., Lashkowitz & Lashkowitz, Fargo, N. D., for appellants.

Eugene A. Burdick, Williston, N. D., for respondent Olaf Giske.

Strutz, Jansonius & Fleck, Bismarck, N. D., for respondents A. M. Fruh, Thomas W. Leach and Carl Thompson.

SATHRE, Judge.

This is an action to determine adverse claims brought by the plaintiffs against the defendants to quiet title to the following described property situated in the county of Williams and State of North Dakota:

The south half of the Northeast quarter and the West half of the Southeast Quarter of Section Thirteen, Township One Hundred Fifty-five, Range Ninety-six.

The complaint is in the statutory form. The defendant Olaf Giske answered alleging that he was the owner of the land described in the complaint; that he acquired said land through a tax deed from Williams County, and demanded judgment quieting title in him. The defendants A. M. Fruh, Thomas W. Leach and Carl Thompson answered claiming their interests by virtue of a mineral deed and oil and gas leases from the defendant Olaf Giske. The validity of their claims is dependent upon the validity of the title of the defendant Olaf Giske. The defendant Williams County did not answer and made no appearance. The case was tried to the court without a jury at Williston, North Dakota before the Hon. Roy A. Ilvedson, Judge of the District Court. The trial Court found for the defendants quieting title in them in accordance with their respective claims, and plaintiffs appealed from the judgment.

Before argument on the merits defendants moved for dismissal of the appeal upon the following grounds:

1. That it affirmatively appears from the files certified to the Supreme Court by the Clerk of the District Court of Williams County, North Dakota, that proof of service of the Notice of Appeal, as to Defendants A. M. Fruh, Thomas W. Leach, and Carl Thompson, necessary adverse parties, was not filed in the office of the Clerk of the District Court of Williams County, North Dakota, within six (6) months after the service of the Notice of Entry of Judgment in this action, as required by NDRC (1943) Sec. 28-2705.

2. That Appellants Effie Strom, Ruth Stuart, Edwin Strom, Robert Strom and Mabel Kong, have failed to serve and file their undertaking on appeal as required by NDRC (1943) Sec. 28-02705 and Sec. 28-2709, and serving and filing of an undertaking on appeal not having been waived.

With reference to the first ground urged we have examined the record and we find that counsel for plaintiffs admitted service of Notice of Entry of Judgment April 25, 1952; that counsel for defendant Olaf Giske admitted service of the Notice of Appeal and Undertaking on Appeal on October 20, 1952 and that the endorsement of the clerk of the district court shows that the same were filed in his office on October 22, 1952, which would be within six months after service of Notice of Entry of Judgment. Counsel for defendants A. M. Fruh, Thomas W. Leach and Carl Thompson admitted in writing service of the Notice of Appeal and Undertaking on Appeal on October 22, 1952. The endorsement made by the clerk of the district court on the written admission of service shows that it was filed in his office October 30, 1952. It appears therefore that the notice of appeal and undertaking on appeal were served upon all of the defendants within the six months allowed for appeal.

Section 28-2705, NDRC 1943, prescribes the procedure for taking appeals and is as follows:

'An appeal must be taken by serving a notice in writing signed by the appellant or his attorney on the adverse party and filing the same in the office of the clerk of the court in which the judgment or order appealed from is entered, stating the appeal from the same, and whether the appeal is from the whole or a part thereof, and if from a part only, specifying the part appealed from. The appeal shall be deemed taken by the service of a notice of the appeal and perfected on service of the undertaking for costs, or the deposit of money instead, or the waiver thereof as in this chapter prescribed.'

The necessary requirement under the statute quoted is that the notice and undertaking be served and filed within the time allowed for appeal. The statute provides that 'The appeal shall be deemed taken by the service of a notice of the appeal and perfected on service of the undertaking for costs, or the deposit of money instead, or the waiver thereof as in this chapter prescribed.' The notice of appeal and the undertaking on appeal were duly served upon all of the defendants and filed with the clerk of the district court. Since service of the notice of appeal was timely made upon all of the defendants and filed in the office of the clerk of the district court, the fact that proof of such service was not filed until two days after the expiration of the time for appeal was immaterial.

The second ground upon which defendants base their motion to dismiss goes to the sufficiency of the undertaking on appeal. The undertaking is as follows:

'Whereas, On the 24th day of April, 1952, in the District Court within and for the County of Williams, State of North Dakota, the Hon. Roy A. Ilvedson, Judge of the District Court, ordered Judgment in favor of the defendants and against the plaintiffs adjudging, determining and decreeing that the adverse claims of the plaintiffs and each of them are invalid, inferior and junior to the rights, title and interests of the defendants, Olaf Giske, A. M. Fruh, Thomas W. Leach and Carl Thompson, and thereby adjudging said claims of plaintiffs as null and void and further decreeing that they have no estate or interest in or lien or encumbrance upon the real property involved in said action; and the above named plaintiffs and appellants feeling aggrieved thereby, intend to appeal therefrom to the Supreme Court of the State of North Dakota; Now Therefore, We do hereby undertake that the said plaintiffs and appellants will pay all costs and damages which may be awarded against them on said appeal or on a dismissal thereof, not exceeding Two Hundred Fifty ($250.00) Dollars.

'Dated this 2 day of October A. D. 1952.

'Henry Strom

Henry Strobeck

Archie Borg.'

The undertaking was signed by only one of the six plaintiff-appellants Henry Strom. Respondents contend therefore that since the five plaintiffs did not join in the execution of the undertaking they, in effect, failed to furnish an undertaking as required by statute. However the undertaking was executed and acknowledged by two sureties. By its terms the sureties undertook that the plaintiffs would pay all costs and damages which might be awarded against them on appeal or on a dismissal thereof. Under the terms of the undertaking the sureties are obligated to pay any amount of costs and damage awarded the defendants against the plaintiffs on the appeal in the amount fixed by the undertaking.

As required by Section 28-2723 NDRC 1943 the sureties justified as to their financial worth over and above their debts and liabilities in property within the state not exempt by law from execution in double the amount specified in the undertaking. It does not appear that the defendants took any exception to the sufficiency of the sureties.

Section 28-2709 NDRC 1943, reads as follows:

'To render an appeal effectual for any purpose, an undertaking...