Suburban Sales & Service, Inc. v. District Court of Ramsey County

• Decision Date: 13 March 1980
• Docket Number: No. 9741,9741
• Citation: 290 N.W.2d 247
• Court: North Dakota Supreme Court
• Parties: SUBURBAN SALES & SERVICE, INC., Clair L. Young, Shirley C. Young, Lloyd H. Young, and Catherine P. Young, Petitioners, v. DISTRICT COURT OF RAMSEY COUNTY, North Dakota; the Honorable Larry M. Hatch, District Judge; and John R. White and Louise M. White; Respondents. Civ.

Page 247

290 N.W.2d 247

SUBURBAN SALES & SERVICE, INC., Clair L. Young, Shirley C Young, Lloyd H. Young, and Catherine P. Young, Petitioners, v. DISTRICT COURT OF RAMSEY COUNTY, North Dakota; the Honorable Larry M. Hatch, District Judge; and John R. White and Louise M. White; Respondents.

Civ. No. 9741.

Supreme Court of North Dakota.

March 13, 1980.

Robert Vaaler, of Vaaler, Gillig, Warcup, Woutat, Zimney & Foster, Grand Forks, and John T. Traynor, of Traynor & Rutten, Devils Lake, for petitioners; argued by Mr. Vaaler.

Seth R. Phillips, St. Paul, Minn., and John W. Frith, Devils Lake, for respondents White; argued by Mr. Phillips.

VANDE WALLE, Justice.

The Youngs petitioned this court for a writ of superintending control over the district court of Ramsey County ("district court") or for other appropriate relief. We decline to exercise our superintending control over the district court.

On October 13, 1972, a judgment was issued, entered, and docketed in the district court of Ramsey County on a cross-claim in favor of the Youngs and against one of the respondents herein, John R. White. Both the Youngs and White had been named as defendants in an action brought by the Ramsey National Bank of Devils Lake. The Youngs had served an amended answer and cross-claim on White on the 28th of August, 1972. White failed to answer the cross-claim, and the district court entered a default judgment against him in the amount of $37,500 in favor of Suburban Sales & Service; $12,600 in favor of Clair L. Young, Jr.; $3,600 in favor of Shirley R. Young; and $39,750 in favor of Clair L. Young, Jr., and Lloyd H. Young individually and as a copartnership known as Young's Auto Parts.

On March 14, 1977, the Ramsey County sheriff levied on the judgment and against the real estate of White; a notice of sale was published for a sheriff's sale to commence on April 12, 1977. White filed a declaration of homestead with respect to his property and the lien of the judgments on that property on March 22, 1977. The validity of that claim of exemption was denied by the Ramsey County district court on April 12, 1977, and a rehearing was denied on September 20, 1977. An appeal was taken, and in an opinion dated June 28, 1978, this court held that the appeal was not timely and proper. The court also observed that while it was not necessary to rule on the homestead exemption, the reasoning of the trial court denying the exemption was persuasive. See Young v. White, 267 N.W.2d 799 (N.D.1978).

Subsequent to this court's decision in Young v. White, supra, on August 18, 1978, White filed a motion under Rule 60(b)(6), N.D.R.Civ.P, ¹ to vacate the judgment dated and entered on October 13, 1972, in favor of the petitioners and against White. The initial hearing on the Rule 60(b) motion was held on November 9, 1978, before Judge Larry M. Hatch, assigned by this court to hear the motion. At that time the district court entered an order permitting White to take depositions in support of his motion for the court to consider along with the remainder of the record. On July 21, 1979, the district court granted White's motion to vacate the judgment entered on October 13, 1972. The Youngs requested a rehearing, which was granted by the district court and held on September 6, 1979. The district court on November 21, 1979, again granted White's motion to vacate the judgment dated October 13, 1972, but held the judgment in the main action brought by Ramsey National Bank against the Youngs and White would not be set aside. The district court further ordered that White's property could not be conveyed or encumbered pending further proceedings. The district court's order was entered on December 19, 1979, and Suburban Sales petitioned this court on January 18, 1980, for a superintending writ.

The Youngs have set forth several grounds upon which they request this court to exercise its superintending authority by compelling the district court to reverse its order of December 19, 1979, and directing the dismissal of White's Rule 60(b) motion. However, before considering the merits of the Youngs' petition, we first consider the jurisdiction of this court to exercise its superintending authority in this instance. We find this issue to be conclusive.

The Youngs correctly point out that the superintending authority of this court over the district court is found in Section 86 of the North Dakota Constitution:

"The supreme court shall be the highest court of the state. It shall have appellate jurisdiction, and shall also have original jurisdiction with authority to issue, hear, and determine such original and remedial writs as may be necessary to properly exercise its jurisdiction. The supreme court shall consist of five justices, one of whom shall be designated chief justice in the manner provided by law."

Further, Section 27-02-04, N.D.C.C., provides:

"The supreme court may exercise appellate jurisdiction only, except when otherwise specially provided by law or by the constitution. Such court, in the exercise of its original jurisdiction, may issue writs of habeas corpus, mandamus, quo warranto, certiorari, and injunction. In the exercise of its appellate jurisdiction, and in its superintending control over inferior courts, it may issue such original and remedial writs as are necessary to the proper exercise of such jurisdiction. Such court shall exercise its original jurisdiction only in habeas corpus cases and in such cases of strictly public concern as involve questions affecting the sovereign rights of this state or its franchises or privileges."

As the Youngs have recognized, this court has expressed on several occasions the principle that its superintending control over inferior courts will be used sparingly and only when an emergency exists and there are no other adequate means of correcting the claimed error. Gill v. Gill, 211 N.W.2d 374 (N.D.1973). In Marmon v. Hodny, 287 N.W.2d 470, 474 (N.D.1980), we stated:

"In Burlington Northern v. North Dakota District Court, 264 N.W.2d 453 (N.D.1978), we observed that our Court on numerous occasions stated that its power to issue original writs, even upon a proper showing, is discretionary and that its power cannot be invoked as a matter of right but will be employed to prevent possible injustice and that from this it necessarily follows that the court itself, on a case-by-case basis, will determine whether or not it should exercise its original jurisdiction."

Marmon, as did Burlington Northern, involved a petition to this court to exercise its superintending authority to prevent the answering of interrogatories ordered to be answered by the district court. In both cases this court noted that the order requiring answers to the interrogatories was not an appealable order. However, we also determined that once the interrogatories were answered, a subsequent review of that order on appeal of the judgment could not undo what had been done by the district court order requiring answers to the interrogatories. We exercised our superintending authority and directed the district court to vacate its order compelling answers to certain interrogatories.

In Ingalls v. Bakken, 167 N.W.2d 516 (N.D.1969), this court stated with regard to its superintending control:

"Such control will not be exercised by the Supreme Court in any case where the applicant has an adequate remedy by appeal. State ex rel. Lemke v. District Court, etc., 49 N.D. 27, 186 N.W. 381 (1921). An exception is made in a case where the delay in appealing would cause irrevocable injury and where the facts of the case require emergency relief. State ex rel. Red River Brick Corp. v. District Court, etc., 24 N.D. 28, 138 N.W. 988 (1912)." 167 N.W.2d at 518.

It is conceded by all the parties that an order vacating a default judgment is not, by itself, appealable. In Trautman v. Keystone Development Corporation, 156 N.W.2d 817 (N.D.1968), this court had under consideration an appeal from an order of the district court vacating a default judgment. The court held that an order granting a motion to vacate the judgment is purely interlocutory and is not an appealable order, and stated:

"An order is appealable only when it comes within the provisions of N.D.C.C. § 28-27-02. We have reviewed that section carefully and find in it no basis for Mr. Trautman's appeal from the order granting the defendant's motion to vacate the judgment. The order is not decisive of the question involved, nor does it prejudice Mr. Trautman's right to raise the question at a subsequent stage of the proceedings." 156 N.W.2d at 818-819.

See also William Clairmont, Inc. v. Burlington Northern, Inc., 229 N.W.2d 77 (N.D.1975).

Section 28-27-02, N.D.C.C., has not been amended since the decisions in Trautman and Clairmont were issued.

Although the order of the district court to vacate a judgment may be interlocutory and not appealable as such, it does not follow that the order may not be reviewable upon an appeal from the judgment entered after trial of the action. Thus, in Ingalls v. Bakken, supra, this court considered a petition for exercise of its superintending authority over a district court which had entered an order holding that the defendant had made a timely appearance and granting him the right to serve his answer on the plaintiff within ten days. In refusing to exercise superintending control this court stated:

"Without deciding this issue, we would point out that the trial court, by permitting the defendant to serve an answer, has not in any way denied justice to the plaintiff. All the trial court has done is to give both parties an opportunity to be heard upon the merits. The question of whether, under the facts of this particular case, the trial court abused its discretion in refusing to enter a default judgment and permitting the defendant to answer, can be raised on appeal from any judgment that is entered in the action. In Braseth v. Bottineau County, 13 N.D. 344, ...