Wilson v. Kryger

• Decision Date: 07 October 1913
• Citation: 26 N.D. 77,143 N.W. 764
• Parties: WILSON v. KRYGER.
• Court: North Dakota Supreme Court

26 N.D. 77

143 N.W. 764

WILSON

v.KRYGER.

Supreme Court of North Dakota.

Oct. 7, 1913.

Syllabus by the Court.

Section 4, c. 131, Laws 1913, requiring the service with the notice of appeal of a statement of the errors of law complained of and a specification of insufficiency of the evidence, when such insufficiency is relied on, is construed, and held not to be a jurisdictional prerequisite to such appeal.

Upon respondent's motion to dismiss an appeal on the ground of appellant's failure to serve the statement and specifications with his notice of appeal, as required by section 4, c. 131, Laws 1913, the court will, upon good cause shown and in furtherance of justice, enlarge the time for the service thereof pursuant to the provisions of section 7224, Rev. Codes 1905, following the rule announced in Burger v. Sinclair, 140 N. W. 233, and also pursuant to the express provisions of section 7 of such new Practice Act.

Mere delay in settling a statement of the case or in taking an appeal, where such appeal was taken within the statutory period allowed therefor, constitutes no ground for a dismissal of the appeal.

An amendatory act, shortening the time for appeals from one year to six months, will not, in the absence of express provisions to the contrary, apply to judgments rendered prior to the taking effect of the new act further than to limit the right of appeal to not more than six months after the taking effect of such new act in such cases as still had a right of appeal under the old law.

Applying such rule of construction, section 14, c. 131, Laws 1913, is held to apply only to those judgments entered, or notice of entry of which was served, less than six months prior to July 1, 1913. From such judgments appeals must be taken within six months after the taking effect of the new act, July 1, 1913; as to all other judgments the old statute governs.

Action by Edward H. Wilson against Henry Kryger. From judgment for plaintiff, defendant appeals, and plaintiff moves to dismiss the appeal. Motion denied.

J. Van Valkenburg, of Minneapolis, Minn., and R. L. Phelps, of Steele, for the motion. Henry Kryger, of Minneapolis, Minn. (Newton, Dullam & Young, of Bismarck, of counsel), opposed.

FISK, J.

Respondent moves for a dismissal of this appeal upon the following grounds: “First. That no statement of the errors of law complained of or specification of insufficient evidence was served with the notice of appeal, as required by paragraph 4, chapter 131, Session Laws of 1913. Second. There has been inexcusable delay on the part of appellant in causing a statement of the case to be settled, and in taking said appeal; more than two terms of this court having passed since the entry of judgment in the district court on July 9, 1912, and no statement having been proposed or submitted. Third. The said appeal was not taken within the time as required by statute.”

[1][2] Appellant resists such motion, and as to the first ground he makes a counter motion for leave at this time to supply the omission to serve the required statement of errors and specifications as required by section 4, chapter 131, Laws of 1913, being the new Practice Act which took effect on July 1st. Counsel for appellant bases such application upon section 7224, R. C. 1905, which provides: “When a party shall in good faith give notice of appeal and shall omit through mistake or accident to do any other act necessary to perfect the appeal to make it effectual or to stay proceedings, the court from which the appeal is taken or the presiding judge thereof or the Supreme Court, or any one of the Justices thereof, may permit an amendment or the proper act to be done on such terms as may be just.” We are satisfied of appellant's good faith in serving the notice of appeal, and that the omission to serve such statement of errors and specifications was purely an oversight, due to the fact that the provision of the new statute aforesaid was overlooked; the notice of appeal having been served but a few days after the taking effect of the new statute.

The court clearly has the power and should permit such omissions to be supplied, unless the provisions of section 4, chapter 131, supra, are construed as mandatory and a compliance therewith jurisdictional. The section reads: “A party desiring to make a motion for new trial or to appeal from a judgment or other determination of a district court or county court with increased jurisdiction, shall serve with the notice of motion or notice of appeal, a concise statement of the errors of law he complains of, and if he claims the evidence is insufficient to support the verdict or that the evidence is of that character that the verdict should be set aside as a matter of discretion, he shall so specify.” If a compliance with such statute is essential to confer jurisdiction upon this court sufficient to enable it to permit amendments or other necessary acts to be done in order to make the appeal effectual, then it follows that respondent's motion should be granted, otherwise it should be denied, provided such amendment or other necessary act is made or taken by leave of court. The new Practice Act aforesaid does not purport to amend or change the existing statute prescribing the steps necessary to be taken to perfect an appeal and we do not think a fair construction of section 4 of such new act evinces any legislative intent to require such statement of errors and specifications as a prerequisite to this court acquiring jurisdiction of the appeal, to the extent at least of authorizing it to permit amendments or other necessary acts to be done to make the appeal effectual. The statute is, no doubt, mandatory in the sense that this court, without such statement of errors and specifications (when necessary), will be unable to dispose of the appeal on the merits; but we are agreed that the service of the notice of appeal and undertaking for costs, pursuant to sections 7205 and 7208, R. C. 1905, confers jurisdiction sufficient to authorize the court to permit appellants to supply the omissions above referred to. The recent case of Burger v. Sinclair, 140 N. W. 233, is authority for our conclusions as above announced.

A still more conclusive answer to respondent's contention in support of the first ground of the motion is found in section 7 of the new act. This section provides: “The court or judge may, upon good cause shown, in furtherance of justice, extend the time within which any of the acts mentioned in sections 1, 2, 3, 4, 5 and 6 of this act, may be done or may, after the time limited therefor has expired, fix another time within which any of such acts may be done.” As the only act required to be done by section 4 is the service of such statement of errors of law and specificationof the insufficiency of the evidence, it necessarily follows that the Legislature, by the enactment of section 7, clearly evinced an intent not to make the service of such statement and specifications, with the notice of appeal, a jurisdictional prerequisite.

Leave is hereby granted the appellant to supply such omissions within 30 days from the date of the filing of this opinion. Should he fail so to do, the appeal may be dismissed upon proper showing of such neglect.

[3] The second ground of the motion is manifestly untenable, conceding that appellant had the full period of one year in which to appeal from the date of notice of the entry of the judgment, which we will hereafter consider. It is no ground for moving to dismiss the appeal because not taken earlier, and it is perfectly plain that a delay, or even an entire failure to cause a statement of the case to be settled, is no ground for such a motion as the appellant may desire merely to have a review of errors appearing upon the judgment roll proper.

[4] The third ground of motion presents a more complex question. The new Practice Act, which took effect on July 1st, reduces the time in which appeals may be taken from judgments from one year to six months after the entry thereof by default, or after written notice of the entry thereof where there was an appearance in the action. Section 14, chapter 131. Such new act is general, and applies to appeals from all judgments whether entered before or after it became effective; and, as we understand respondent's contention, it is that such statute, relating as it does merely to the remedy, should be given not only a prospective but a retrospective operation, and as thus construed, it operated eo instanti to cut off appellant's right of appeal from the judgment in question on July 1st. We cannot, however, agree with the conclusion thus drawn by respondent's counsel. While the act deals only with the remedy and on its face applies to all judgments, whether rendered before or after its enactment, we think it is entirely clear that the Legislature did not intend to give it a retroactive operation so as to cut off a right of appeal which existed at the time it took effect. While manifestly the legislative purpose was to shorten the time for appeal to six months as to all judgments, it no doubt intended to have such period computed from the date the new act should take effect, and where, under the old statute, more than six months would be left in which to take an appeal from an existing judgment, the new act would cut off the right of appeal at the expiration of six months from July 1st. But in cases of existing judgments where, on July 1st, a period of but six months or less remained in which to take an appeal under the old statute, the new act does not apply, and the time prescribed under the old act governs. In other words, the new act will not be given an interpretation which would result in thwarting the legislative will, which was to shorten-not lengthen-the time for prosecuting appeals.

In order to give effect to the evident legislative intent we are required to hold that the new act applies only to those judgments the time for appealing...