Young v. White

• Decision Date: 28 June 1978
• Docket Number: No. 9422,9422
• Parties: Clair L. YOUNG, Jr., and Lloyd H. Young, Individually and doing business as Youngs Auto Parts, a partnership, Shirley C. Young, Individually, and Clair L. Young, Jr., Individually, Appellees, v. John R. WHITE, Appellant. Civ.
• Court: North Dakota Supreme Court

Page 799

267 N.W.2d 799

Clair L. YOUNG, Jr., and Lloyd H. Young, Individually and doing business as Youngs Auto Parts, a partnership, Shirley C. Young Individually, and Clair L Young, Jr. Individually Appellees, v. John R. WHITE, Appellant.

Civ. No. 9422.

Supreme Court of North Dakota.

June 28, 1978.

David Garcia, Devils Lake, for appellant.

Traynor & Rutten, Devils Lake, for appellees; argued by John T. Traynor, Devils Lake.

SAND, Justice.

The defendant, John R. White, appealed from a Ramsey County district court order denying his motion for rehearing entered on 23 September 1977. White, however, argued that this appeal in effect is from the order confirming sale entered by the court on 22 April 1977.

A brief review of the chronological events leading up to this appeal will be helpful in understanding and resolving the legal issues.

John White obtained the property in question in 1962 and his deed was recorded in the Register of Deeds office in Ramsey County on 9 March 1963.

On 24 February 1967 the marriage of John White and Phyllis White was dissolved.

On 13 October 1972 a judgment against John White was filed.

On 7 March 1974 the marriage of John White and Louise White (second marriage) was dissolved by judgment of the district court of Eddy County. (This marriage took place on 12 August 1967.)

On 14 March 1977 the sheriff of Ramsey County levied on the judgment debtor's real estate and a notice of sale was issued stating that the property would be sold at public sale on 12 April 1977.

On 22 March 1977 the judgment debtor filed a declaration of homestead in the office of the Register of Deeds of Ramsey County, North Dakota. ¹

On 6 April 1977 a hearing was held in Ramsey County district court under the provisions of § 28-25-01, North Dakota Century Code, examining the defendant, John White, the judgment debtor.

On 12 April 1977 the district court of Ramsey County issued its memorandum opinion holding that the real property in question upon which the judgment debtor had filed a declaration of homestead was not exempt from execution.

On 22 April 1977 the district court of Ramsey County signed an order confirming sale under execution.

On 28 April 1977 the district court of Ramsey County entered an order granting motion to strike the declaration of homestead.

On 12 May 1977 the judgment debtor served a motion and affidavit in support of motion for rehearing in this matter.

On 31 May 1977 service was made upon the judgment debtor's counsel of the order confirming sale of the sheriff's return on execution, the sheriff's certificate of sale under execution and the order granting motion to strike declaration of homestead.

On 20 September 1977 the district court of Ramsey County issued its memorandum opinion denying a rehearing in the matter.

On 23 September 1977 counsel for the judgment debtor was served with an order denying motion for rehearing.

On 21 November 1977 the judgment debtor served a notice of appeal from the order denying motion for rehearing.

The primary issues we are concerned with are whether or not an order denying a motion for rehearing is appealable and whether or not the action taken by White constituted an appeal and, if so, was the appeal timely.

Other secondary issues are: (1) Does § 47-18-02(3), NDCC, as amended by S.L. 1977, Ch. 432, apply; and (2) Is the judgment lien of Young superior to the homestead claim of White?

The Legislature determines what is appealable in this State. The right to appeal is purely statutory and an order is appealable only when it comes within the specific statute. Section 90 North Dakota Constitution, as amended in 1976; State ex rel. Olson v. Nelson, 222 N.W.2d 383 (N.D.1974). Section 28-27-02, NDCC, sets out which orders and judgments are appealable. Section 87 of the North Dakota Constitution, as amended in 1976, granted authority to the Supreme Court to promulgate Rules of Appellate Procedure, which it did.

Rule 3 of the North Dakota Rules of Appellate Procedure provides the manner in which an appeal is taken. (Rule 3 also superseded § 28-27-05, NDCC, by implication.) Subdivision (c) of Rule 3, NDRAppP, provides that the notice of appeal shall designate the judgment or order, or part thereof, appealed from, and shall name the court to which the appeal is taken.

Rule 4, NDRAppP, provides that the appeal shall be filed within 60 days of the date of the service of the entry of judgment or order appealed from. It also provides that:

"The running of the time for filing a notice of appeal is terminated as to all parties by a timely motion filed in the trial court by any party pursuant to the North Dakota Rules of Civil Procedure hereafter enumerated in this sentence, and the full time for appeal fixed by this subdivision commences to run and is to be computed from service of notice of the entry of any of the following orders made upon a timely motion under such rules: (1) granting or denying a motion for judgment under Rule 50(b); (2) granting or denying a motion under Rule 52(b) to amend or make additional findings of fact, whether or not an alteration of the judgment would be required if the motion is granted; (3) granting or denying a motion under Rule 59 to alter or amend the judgment; or (4) denying a motion for a new trial under Rule 59."

It also provides that the trial court may extend the time for filing notice of appeal upon showing of excusable neglect for a period not to exceed 30 days from the expiration of the time otherwise prescribed by Rule 4 and that such extension may be granted before or after the time otherwise prescribed by this subdivision has expired. But if a request for an extension is made after such time has expired it shall be made by motion with such notice as the trial court deems appropriate.

Keeping in mind the foregoing provision, we have carefully examined § 28-27-02, NDCC, and conclude therefrom that an order denying a motion for rehearing is not appealable. However, White argues that this motion is also to be considered as a Rule 60(b) motion under the North Dakota Rules of Civil Procedure and as such it should be considered in a different light. In response to this argument, we note that Rule 60(v) specifically states:

". . . A motion under this subdivision (b) does not affect the finality of a judgment or suspend its operations."

We further note that under the provisions of Rule 4, NDRAppP, specifying which type of actions will interrupt the running of time for filing a notice of appeal makes reference to motions under Rules 50(b), 52(b), and 59, NDRCivP, but no reference is made to Rule 60(b). Consequently, we conclude that if White's argument were to be recognized and the motion were to be considered a 60(b) motion the running of the time for filing of appeal was not interrupted by the motion in question. Schnell v. Schnell, 252 N.W.2d 14, 17 (N.D.1977).

Even if we were to give some credence to White's argument that his appeal on 21 November 1977 from the order denying motion for rehearing in reality was an appeal from the order confirming sale entered by the...