Stutsman Cnty. v. Bowman Cnty., 6569.

• Decision Date: 31 December 1938
• Docket Number: No. 6569.,6569.
• Citation: 68 N.D. 699,283 N.W. 179
• Parties: STUTSMAN COUNTY v. BOWMAN COUNTY et al.
• Court: North Dakota Supreme Court

68 N.D. 699

283 N.W. 179

STUTSMAN COUNTY

v.BOWMAN COUNTY et al.

No. 6569.

Supreme Court of North Dakota.

Dec. 31, 1938.

Syllabus by the Court.

1. Section 7820, Compiled Laws, N.D.1913, governs the time within which an appeal may be taken from a judgment determining the residence of an indigent for poor relief purposes, entered in an action brought under Section 13, Chapter 97, Session Laws, N.D.1933, as amended by Chapter 119, § 2, Session Laws, N.D.1935.

2. The legal residence of an indigent for poor relief purposes is lost by voluntary absence for more than one year from the county in which such residence obtained.

3. Contribution to the poor relief of an indigent by a county in which such indigent has had a legal residence within one year has the effect of making the period of absence of the indigent from such county involuntary up to and including the period for which such relief is furnished.

4. The evidence is examined and it is held, that a certain residence agreement executed by Bowman County was accepted and acted upon by Barnes County, and the performance thereof was undertaken by and it became binding upon both counties.

Appeal from District Court, Stutsman County; R. G. McFarland, Judge.

Action by Stutsman County against Bowman County and others to have Clair K. Skeel and his wife and children declared to be poor persons and public charges of Bowman County, and to have them removed to that county. From a judgment finding that they were residents of Bowman County and directing their removal thereto, that County appeals.

Affirmed.

M. S. Byrne, State's Atty., of Bowman, for appellant.

C. S. Buck, Jr., Asst. State's Atty., of Jamestown, for respondent.

MORRIS, Judge.

This action is brought by Stutsman County against Bowman County, Clair K. Skeel, and his wife and three minor children. The plaintiff seeks to have the Skeels declared to be poor persons and public charges of Bowman County, and to have them removed to that county. The case was tried to the court without a jury. The court found that the Skeels were residents of Bowman County and directed their removal thereto. Bowman County alone appeals.

[1] The respondent has raised a question of procedure by making a motion in this court that the appeal be dismissed upon the ground “That the Notice of Appeal in said action was not served upon the plaintiff or any person in its behalf within twenty (20) days after the service of the Notice of Entry of Judgment as is provided by law.”

The notice of entry of judgment was served April 21, 1938. The notice of appeal was served on the 9th day of August 1938. The respondent contends that Bowman County had but twenty days within which to appeal because of Section 15, Chapter 97, Session Laws, N.D.1933, which provides: “If any poor person is ordered removed to another county, or to another state, he may within twenty days after the service of such order of removal, appeal from the order of the district court ordering such removal to the supreme court, and such appeal shall be taken, tried and determined as in other cases of appeal from the judgment of the district court in cases tried without a jury, and the order of removal may be vacated or affirmed according to law and the right of the cause.”

The appellant contends that it had six months in which to appeal because in Section 2 of the aforesaid act it is said that, “Except as otherwise provided in this Act such suits and proceedings, including the service of process, shall be governed by the provisions of the Code of Civil Procedure.”

An examination of Chapter 97, Session Laws, N.D.1933, as amended by Chapter 119, Session Laws, N.D.1935, discloses two forms of proceeding that may be resorted to depending upon the nature of the controversy. Section 13 deals with the determination of the residence of an indigent for poor relief purposes when there is a controversy between counties with respect thereto. This section provides in part: “When the question of legal residence of any poor person who is likely to become a public charge or has become a public charge is an issue between the overseers of the poor in two or more counties and when an agreement cannot be effected, the county commissioners of the county in which said person is then residing may bring action in the district court against the county or counties in which legal residence of such poor person is alleged to be to determine the issue. Such poor person shall also be made a party defendant. The summons in such action shall be in the form prescribed for summons in civil actions except that the defendants shall be required to serve an answer to the complaint within fifteen days after the service of the summons upon such defendants.”

To the extent that the procedure applicable to actions brought under this section is not therein specifically provided for, it is governed by the provisions of the code of civil procedure in accordance with Section 2 of the same act from which we have previously quoted. Under Section 7820, Compiled Laws N.D.1913, which is a part of the code of civil procedure, an appeal from a judgment may be taken within six months after notice of entry thereof. This provision governs the time for appeal in this case.

The twenty day limitation upon the right of appeal which is made the basis for respondent's motion is not applicable to actions brought under Section 13. Section 14 of Chapter 97, as amended, provides for application to the District Court for an order directing the removal of an indigent to the county of his legal residence: “Such application for an order for removal to the district court shall be made upon written notice and order to show cause served upon such poor person and such poor person shall be entitled to a hearing thereon before an order of removal is issued. Such application shall state that the person either has or is liable to become a public charge and that the county of his legal residence concedes his legal residence therein.” This procedure is not available to determine controversies between counties as to the residence of an indigent. Such controversies must be litigated in actions brought under Section 13.

[2] Section 15, which contains the twenty day limitation of the right of appeal, deals only with the appeal from an order of removal made pursuant to Section 14, and has no application to judgments entered in actions between counties brought under Section 13. The motion to dismiss the appeal must, therefore, be denied.

The record discloses the following material facts with respect to the merits: The Skeel family were residents of Bowman County in July, 1936. They had received aid from public funds at various times since 1933. During the forepart of July, 1936, they left Bowman County by automobile, arriving in Stutsman County on the 11th or 12th of July. After staying there for three days they went to Canada. In about ten days they left Canada and without returning to North Dakota went to the State of Washington, where they stayed until the latter part of October. They reached Stutsman County again about October 24, and stayed a few days, then returned to Bowman County for about a week. They then came back to Stutsman County for two days and went on to Barnes County, arriving there November 18, 1936. Clair Skeel obtained a W. P. A. transfer card from Bowman to Barnes County, but never worked on the W. P. A. in the latter county. He applied for poor relief in Barnes County on November 30. On the 2nd day of December, 1936, the Board of County Commissioners of Bowman County executed an instrument known as a residence agreement which recites that Clair Skeel and his family are indigent persons and “are subject to removal and return to the County of Bowman, the place of their legal residence, pursuant to Chapter 97, Laws 1933, and acts amendatory thereof.” It is then provided that in order that Clair Skeel and his family may be permitted to live in Barnes County, “That the County of Bowman, hereby undertakes and agrees to provide for and support the said Clair Skeel, and his family with whatever aid, assistance or relief that they may from time to time need or require. Provided further that in case the County of Bowman fails or refuses to discharge its legal obligations for the support of its said family, that then and in that case the District Court having jurisdiction, is hereby authorized upon (10) days notice, to order the removal and return of said Clair Skeel and his family to the County of Bowman, the place of their legal residence.”

This agreement was not signed by the County Commissioners of Barnes County, although it was returned to them. Relief was furnished by Barnes County under the agreement. On December 30, 1936,...