Wasson v. Bhd. of R.R. Trainmen

• Decision Date: 07 December 1934
• Docket Number: No. 6307.,6307.
• Citation: 257 N.W. 635,65 N.D. 246
• Parties: WASSON v. BROTHERHOOD OF RAILROAD TRAINMEN.
• Court: North Dakota Supreme Court

65 N.D. 246

257 N.W. 635

WASSON

v.BROTHERHOOD OF RAILROAD TRAINMEN.

No. 6307.

Supreme Court of North Dakota.

Dec. 7, 1934.

Syllabus by the Court.

1. A notice of appeal to this court is sufficient where it states that the appeal is from a judgment, fully describing it, although it does not expressly state that the appeal is from the whole or a part of the judgment, in accordance with section 7821, Comp. Laws 1913.

2. A notice of appeal to this court is sufficient where the notice states that the appeal is from an order, fully describing it, although it does not expressly state that the appeal is from the whole of the order.

3. Where a notice of appeal to this court is served in good faith, an undertaking that is defective, though not a nullity, also given in good faith, may be cured under the provisions of section 7840, Comp. Laws 1913.

4. A motion by the respondent for a dismissal of the appeal will not lie upon the grounds that appellant's brief does not comply with the rules of this court.

5. Where two actions are consolidated for purpose of trial and appeals are taken from the determinations, a single statement of the case and a single brief covering both actions may be sufficient, and in the instant case same are held to be sufficient.

6. Where a law action is tried to a court and jury, and at the close of the evidence both plaintiff and defendant move for a directed verdict, respectively, and thereupon the jury is dismissed and the issues are determined by the court, upon appeal from such determination to this court, the same does not constitute a case tried to the court without a jury, as contemplated by section 7846, 1925 Supplement to the Compiled Laws of 1913, as amended by chapter 208, Laws 1933.

Appeal from District Court, Stutsman County; Fred Jansonius, Judge.

Action by Howard Wasson against the Brotherhood of Railroad Trainmen. From an adverse judgment, defendant appeals. On respondent's motion to dismiss the appeal.

Motion denied on condition, and case remanded, with directions.

P. W. Lanier, of Fargo, for appellant.

Fredricks & Fredricks, of Jamestown, for respondent.

MOELLRING, Judge.

The respondent presents a motion to dismiss the appeal upon the grounds, in substance: (1) That the purported notice of appeal which was served on the respondent does not conform to the conditions and requirements of section 7821, Comp. Laws 1913, and in particular because the notice does not state whether the appeal is from the whole or a part of the judgment; and, further, because no record of the moving papers on the motion and order referred to in the notice of appeal have been filed with the clerk of the district court or returned with the record in this court; (2) that no sufficient undertaking on appeal has been given as required by sections 7824, 7836, and 7837, Comp. Laws 1913, or served with the notice of appeal, or at all, and that none was filed, and that therefore no appeal was perfected; (3) that no statement of the case was served, settled, or filed in the district court in this action containing specifications, as provided in chapter 208, Laws 1933, and that none was made a part of the record or judgment roll therein, and none was transmitted to this court with the record in this action; and (4) that the appellant has not served or filed a brief as required by the rules of this court.

That part of the notice of appeal material for our consideration reads as follows:

“* * * That said appeal is from the Order of the Judge of the District Court dated June 25th, 1934 overruling defendant's motion for judgment notwithstanding former decision or in the alternative for a new trial, and from the judgment of the District Court entered herein on the 4th day of April, 1934 in the sum of $2129.57.

This appeal is on questions of law and fact, from the rulings of the trial judge on questions of evidence and from the judgment from lack of evidence in support of same.”

The statute, section 7821, Comp. Laws 1913, does not prescribe any particular form for the notice of appeal, and, where the intention of the appellant is sufficiently apparent to reasonably apprise the opposite party what is contemplated by the notice of appeal, there is a compliance with the statute.

In the case of State ex rel. Heffron v. Bleth, 21 N. D. 27, 127 N. W. 1043, 1044, this court held that a notice of appeal to this court is sufficient where it states the appeal is from an order, fully describing it, although it does not expressly state that the appeal is from the whole order, in accordance with the provisions of the statute. In the latter case the notice of appeal read: “The plaintiff appeals to the Supreme Court of the state of North Dakota from the order made and entered in the above-entitled action on the 13th day of September, 1909.” The provisions of the order were also stated in the notice. With reference to the notice of appeal, this court said, in part: “We think that the notice complies with the statute. The objection urged that the notice does not in express words state whether the appeal is from the whole of the order or from a part thereof is technical and not substantial. We think the notice substantially complies with the statute in this regard. An appeal from an order is necessarily from the whole thereof. Nothing would be added to the effect of the notice by stating that the appeal is from the whole of the order. The same objection was before the court in Irvin v. Smith, 68 Wis. 220, 31 N. W. 909, and held of no force, under a statute which is like our own.”

[1] In the instant case the notice states that the appeal is from the judgment of the district court entered on the 4th day of April, 1934, also stating the amount of the judgment. It also states that the appeal is on questions of law and fact from the rulings of the trial judge on questions of evidence and from the judgment for lack of evidence in support of same. We believe the language clearly indicates that the appeal is from the whole judgment. With reference to the appeal from the order, the notice states that the appeal is taken from the order of the district court dated June 25, 1934, overruling defendant's motion for judgment notwithstanding former decision or in the alternative for a new trial. Likewise, we believe it is apparent that the appeal is from the whole order. See, also, Enderlien et al. v. Kulaas, 25 N. D. 385, 141 N. W. 511;Kinney v. Brotherhood of American Yeomen, 15 N. D. 21, 106 N. W. 44.

[2][3] With reference to the undertaking, the instrument served and filed purports to be an undertaking on appeal and also a supersedeas bond. The undertaking is not in the usual form, and agrees to guarantee the payment to plaintiff of any sums that may be adjudged on the appeal to be due the plaintiff, including the costs of the appeal; and the whole amount fixed in the bond is the sum of $2,129.57, which is the amount of the judgment from which the appeal is taken. The fact that the undertaking purports to guarantee the payment of damages and costs on the appeal, instead of a direct agreement to pay all costs and damages which may be awarded, is not a compliance with the statute; however, the undertaking contains the provision: “If the undersigned, the Fidelity and Deposit Company of Maryland, shall abide all orders of the Supreme Court entered herein on account of this bond, then this bond shall become null and void and of no effect.” Although the undertaking is irregular, we cannot say that it is a nullity in so far as an undertaking for costs on appeal is concerned, but it is not regular in form and not sufficient in amount as a supersedeas bond in addition to a cost bond.

This court held in Gamble-Robinson Minot Co. v. Mauratis, 55 N. D. 616, 214 N. W. 913, 915, that: “The service of an undertaking on appeal is not jurisdictional. The notice of appeal, if served in good faith, confers jurisdiction and, thereafter the court, pursuant to section 7840, C. L. 1913, may permit the appeal to be perfected by providing the requisite undertaking.” See, also, Burger v. Sinclair, 24 N. D. 326, 140 N. W. 235;Enderlien et al. v. Kulaas, 25 N. D. 385, 141 N. W. 511;Rawleigh Medical Co. v. Laursen et al., 25 N. D. 63, 141 N. W. 64, 48 L. R. A. (N. S.) 198.

We have no doubt that the defendant served the notice of appeal in good...