Verry v. Murphy

• Decision Date: 12 December 1968
• Docket Number: No. 8476,8476
• Parties: C. R. VERRY, Plaintiff and Respondent, v. Cecil S. MURPHY, Sr., Defendant and Appellant. Div.
• Court: North Dakota Supreme Court

Page 721

163 N.W.2d 721

C. R. VERRY, Plaintiff and Respondent, v. Cecil S. MURPHY, Sr., Defendant and Appellant.

Div. No. 8476.

Supreme Court of North Dakota.

Dec. 12, 1968.

Rehearing Denied Jan. 17, 1969.

Syllabus by the Court

1. An appeal to the Supreme Court does not stay proceedings for enforcement of a judgment unless a supersedeas bond is given and approved by the court. A party feeling aggrieved by stay order wrongfully obtained must apply to district court to vacate it and will not be permitted to apply for such relief in the first instance in the Supreme Court.

2. Failure to give the notice required by statute of appellant's intention to furnish a supersedeas bond is not jurisdictional.

3. District court, upon showing of good cause, has power to issue certificate settling statement of case after the time allowed by law has expired.

4. A party who makes a motion for dismissal of appeal has not only the burden of showing necessary facts from the record but also to sustain the grounds therefor.

5. In a case triable de novo in the Supreme Court, where certified judgment roll includes a statement of the case and the only attack is made upon the certification thereof, the respondent cannot prevail upon a motion for dismissal of the appeal.

6. Where trial de novo is demanded, appellate court, while giving appreciable weight to trial court's findings of fact, has duty to find anew all material facts for itself.

7. Where failure of consideration and fraud are pled as defenses to validity of a note, parol evidence is competent and admissible to prove the same under well-recognized exception to parol-evidence rule.

8. Every negotiable instrument is deemed prima facie to have been issued for a valuable consideration and every person whose signature appears thereon to have become a party thereto for value.

9. As a general rule, as between the immediate parties to a note, an adequate consideration is essential to the validity thereof.

10. As between the immediate parties, failure of consideration is a valid defense to the payment of a note, and parol evidence is admissible to prove that the consideration therefor has failed.

11. Where a party has an opportunity to deny or explain statements attributed to him which are relevant and highly unfavorable or prejudicial to his cause, his failure to deny or explain the same warrants the inference that the undenied and unexplained statements made by him are true and correct.

12. The suppression of the truth or of any material fact which a party is bound in good faith to disclose, with the intent to deceive another party or to induce him to enter into a contract, constitutes actual fraud.

13. In the absence of direct testimony, inducement and reliance upon promises made and assurances given may be inferred from the conduct of the parties and from all the facts and attending circumstances in evidence.

14. For reasons stated in the opinion, it is held that the respondent committed actual fraud when he failed to disclose that he intended to use the note he obtained as an evidence of debt.

15. Where a note is procured by fraud, the fraud taints and destroys it in its entirety and renders such note null and void from its inception, and the judgment entered thereon is a nullity.

16. The time of payment contained in the note cannot be extended by an oral agreement when the oral promise to extend payment is based entirely upon the debtor's oral promise to pay the consideration for the extension at some future date.

17. Where the maker of a note pleads extension of the time of payment, as the only defense thereto, and fails to sustain the burden of proof thereon, it is held that a judgment on the note in favor of the payee must be affirmed.

Waldron & Kenner, Minot, for plaintiff and respondent.

Funke & Eaton, Minot, for defendant and appellant.

KELSCH, District Judge.

This is an appeal by the defendant from an adverse judgment recovered against him upon two promissory notes.

At the outset, we are confronted with respondent's motion for a dismissal of said appeal upon the grounds:

(1) That the appellant did not give respondent the notice required by statute of his intention to apply for an order fixing the amount of the supersedeas bond, as required by Section 28--27--22, N.D.C.C.;

(2) That the appellant did not apply for an order to extend the time allowed by law to obtain a settlement of the statement of the case; and

(3) That the appellant obtained a certificate settling the statement of the case after the time allowed by law had expired, without making a showing of good cause therefor.

The appellant resisted said motion and we heard and considered the arguments of counsel thereon, with the understanding that we would decide the motion before we considered the appeal upon the merits.

Counsel for respondent argues, in effect, that the statute is mandatory; that it should be construed to mean what it says; and that a substantial compliance therewith is essential to confer appellate jurisdiction upon this court. Stated differently, he claims that the failure to give the notice required by statute, which is not denied, is jurisdictional and, as such, requires the dismissal of this appeal.

Rule 62(d), N.D.R.Civ.P., provides, in effect, that when an appeal is taken, the appellant may obtain a stay of execution by giving a supersedeas bond; that such bond may be given at or after the time of filing the notice of appeal; and that the stay becomes effective when the bond is approved by order of the court.

The obvious purpose of the notice required by statute is to give the judgment creditor an opportunity to object to both the sufficiency of the bond and of the sureties, if it is defective in form or substance.

It is well settled in this State that an appeal does not operate to stay proceedings for the enforcement of a judgment; that a judgment may be enforced unless a supersedeas bond is given at or after the time of filing the notice of appeal. A stay becomes effective when the supersedeas bond is approved by the court. Where a stay is wrongfully obtained, the proper remedy is to make application to the district court to vacate and dissolve its order approving the bond. The stay of an execution upon appeal is an independent and collateral proceeding, and a judgment creditor who feels aggrieved thereby must make his application for appropriate relief in the district court. He should not be permitted to apply for such relief, in the first instance, in the Supreme Court. Beyer v. Robinson, 32 N.D. 560, 156 N.W. 203; Wasson v. Brotherhood of Railroad Trainmen, 65 N.D. 246, 257 N.W. 635; Bonde v. Stern, 72 N.D. 476, 8 N.W.2d 457.

Under these decisions, the failure to give the notice required by statute is not jurisdictional; it does not invalidate the appeal nor deprive the appellate court of its jurisdiction.

The other assignments of error contained in the motion for a dismissal of the appeal relate to the settlement of the statement of the case after the statutory time had expired, without good cause having been shown therefor.

We find, from an examination of the record:

(1) That judgment was entered on April 7, 1967;

(2) That notice of appeal was served and filed on April 17, 1967;

(3) That a supersedeas surety bond was filed on April 17, 1967;

(4) That on December 15, 1967, the appellant moved for an extension of time to perfect the record for the purpose of appeal, returnable on December 26, 1967; and

(5) That on January 8, 1968, counsel for respondent filed written objections to the extension of time to obtain a transcript of the evidence and the settled statement of the case, upon the ground, among others that no showing was made, by affidavit, of good cause therefor.

It is true that there is no affidavit made by the appellant or his counsel in the record transmitted to us to show that good cause did, in fact, exist to warrant extension of time sought. Our record of the oral arguments made by counsel upon the motion for dismissal shows, however:

(1) That counsel for appellant claimed that he did present evidence to show the existence of good cause for the extension of time; and

(2) That counsel for the respondent admitted that some evidence was, in fact, adduced before the trial court tending to show good cause for an extension of time.

We have carefully examined the entire record but do not find a transcript of the evidence so presented to the trial court. We therefore have no record before us from which to determine whether or not the evidence adduced was sufficient to show that good cause did, in fact, exist.

In the absence of a record showing that good cause was not established, it is reasonable to presume that the trial court found that the evidence submitted to it was, in fact, sufficient to show that good cause did exist, and thereupon granted appellant an extension of forty-five days within which to perfect the record upon appeal, and that the statement of the case was, in fact, settled within the time so extended.

On this issue, we have consistently held:

That the district court has the power to issue its certificate settling the statement of the case after the time allowed by law has expired, upon a showing of good cause; that a motion for such certificate is addressed to the sound, judicial discretion of the trial court, and that its decision will not be disturbed unless the record clearly shows that it abused its judicial discretion (Muhlhauser v. Becker, 76 N.D. 402, 37 N.W.2d 352; Schriock v. Schriock (N.D.), 128 N.W.2d 852; Kline v. Landeis (N.D.), 147 N.W.2d 897); and

That a party who makes a motion for the dismissal of an appeal has not only the burden of presenting a record proving the necessary facts, but also the burden of sustaining the grounds thereon (In re Ashbrook's Estate (N.D.), 110 N.W.2d 184).

There is yet another sound reason why we cannot grant respondent's motion for the dismissal of this appeal,...