Weichel v. Hansen
| Decision Date | 04 June 1974 |
| Docket Number | No. 9017,9017 |
| Parties | Helen WEICHEL and Betty Brendel, Plaintiffs, v. Curtis B. HANSEN, Defendant. |
| Court | North Dakota Supreme Court |
Syllabus by the Court
1. When an application for exercise of superintending control is presented under Section 86, North Dakota Constitution, the Supreme Court must determine whether the facts present a proper case for the exercise of its superintending control.
2. The superintending control of the Supreme Court over lower courts is not used unless an emergency exists and there is no other adequate means of correcting the claimed error.
3. A case involving the right to appeal to the Supreme Court from the decision of the district court on appeal from the small claims court does not merit the exercise by the Supreme Court of its power of superintending control over inferior courts when there is an adequate remedy in the district court available to the litigant.
Curtis B. Hansen, Bismarck, pro se.
Thomas F. Kelsch, State's Atty., and Thomas B. Tudor, Asst. State's Atty., Bismarck, for Thora Dennis, Clerk of the District Court of Burleigh County.
Curtis Hansen applied to this court for a supervisory writ to require the clerk of the district court of Burleigh County to accept and file Hansen's notice of appeal to the supreme court from a judgment of the district court. Hansen had appealed to the district court an unfavorable judgment rendered in the small claims court. The district court had affirmed the judgment of the small claims court. Hansen sought to appeal to the supreme court the judgment of the district court affirming the judgment of the small claims court by presenting the notice of appeal for filing, within the statutory time limit, to the clerk of the district court. The clerk of the district court refused to accept the notice of appeal for filing on the ground that under the Small Claims Court Act no appeal was available from the decision or judgment of the district court upon appeal from a judgment of the small claims court. Section 27--08.1--06, North Dakota Century Code. Thereupon Hansen applied to this court, invoking its original jurisdiction for the exercise of its superintending control, and an order to show cause was issued directed to the clerk of the district court requiring her to show cause why she should not be ordered to accept for filing the notice of appeal to the supreme court.
Hansen contends that the clerk of court is without power to determine the sufficiency of a notice of appeal which is tendered to that office for filing.
The sole issue before us for determination is whether this is a proper case for the exercise by the supreme court of its superintending control over inferior courts.
The superintending control over inferior courts by the supreme court is set forth in Section 86 of the North Dakota Constitution, the pertinent part reading:
'The supreme court . . . shall have a general superintending control over all inferior courts under such regulations and limitations as may be prescribed by law.'
The supreme court is authorized to issue such original and remedial writs as are necessary to the proper exercise of such superintending control by § 27--02--04, N.D.C.C., which reads, in part:
The statute, § 27--02--04, N.D.C.C., does not limit or restrict the power of the supreme court of its superintending control over inferior courts. On the contrary, it places the entire responsibility for the proper exercise of superintending jurisdiction in the supreme court, for the statute says, 'and in its superintending control over inferior courts it may issue such original and remedial writs as are necessary for the proper exercise of such jurisdiction.' It is for the court, then, to determine when a proper case is presented for the exercise of its superintending control. State v. Broderick, 75 N.D. 340, 27 N.W.2d 849 (N.D.1947).
The superintending control is a separate and independent jurisdiction which enables and requires this court in a proper case to control the course of ordinary litigation in inferior courts so as to prevent injustice in cases Where there is no appeal or the remedy by appeal is inadequate. State ex rel. Lemke v. District Court of Stutsman County, 49 N.D. 27, 186 N.W. 381 (1921).
It may be said that in this case that the invoking of the...
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Spence v. North Dakota Dist. Court
...is no appeal, or when the remedy by appeal is inadequate." Olson v. North Dakota Dist. Court, Etc., 271 N.W.2d at 577; Weichel v. Hansen, 219 N.W.2d 118 (N.D.1974). Superintending jurisdiction enables this court to control a lower court, "which though within its jurisdiction, is by mistake ......
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City of Bismarck v. Walker
...court upon appeal from the small claims court or from entry of judgment in the district court pursuant to this action."In Weichel v. Hansen, 219 N.W.2d 118 (N.D.1974), Hansen petitioned the Supreme Court to exercise its superintending control over the clerk of the district court to refuse t......
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Hansen v. Dennis
...of appeal and the undertaking for filing, Hansen sought a supervisory writ from this court. This court in Weichel and Brendel v. Hansen, 219 N.W.2d 118 (N.D.1974), denied Hansen's application for a supervisory writ suggesting that he had an adequate remedy through mandamus proceedings in th......
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Kostelecky v. Engelter, 9529
...that he had requested, Kostelecky would have been without grounds to pursue a petition for a writ of certiorari.7 In Weichel v. Hansen, 219 N.W.2d 118 (N.D.1974), this court denied a petition for the exercise of its superintending power over the clerk of a district court for refusal to file......