State Bank v. Hileman

154 N.W. 532, 31 N.D. 417, 1915 N.D. LEXIS 212

• Court: North Dakota Supreme Court
• Decided: October 9, 1915
• Status: Published

Opinion

Fisk, Ob. J.

Respondent moves tbis court for an order striking from the files tbe statement of tbe case and appellant’s brief, and summarily affirming tbe judgment below.

The grounds for such motion are in substance: 1. That appellant has failed to specify in his statement of the case a demand either for a trial de novo or for the review of any questions of fact.

2. That the brief fails to comply in any respect with the rules of this court in such cases.

The first part of the motion is technically well taken, but appellant’s counsel explains the omission as the result of inadvertence and excusable neglect, and asks that the record be remanded to the lower court that such omission may be supplied. Under the showing, we think the interests of justice will be best subserved by granting such request. It does not appear that respondent will be in any way prejudiced by the delay thus occasioned, as the case will probably not be reached on the calendar of this court for several months.

While the statement fails to contain the specification required by statute, the notice of appeal does contain a demand for a trial de novo of the action in the supreme court. This, however, is manifestly not a compliance with the statute, which specifically requires that in actions triable de novo in this court the appellant shall specify therein the questions of fact that he desires the supreme court to review, and if he desires a review of the entire case he shall so specify. Comp. Laws 1913, § 7846; see also rule 31.

Appellant’s counsel expressly concedes that the criticism of his brief" is well taken, but he attempts to excuse the omissions as a mere oversight or inadvertence, and asks that he be granted leave to supply another brief. We find that the excuse offered for the omissions is sufficient to justify this court under the circumstances in' granting the request aforesaid. However, we think terms should be imposed as a condition to the granting of these favors. It is accordingly ordered that upon payment to respondent’s counsel of $25 motion costs, the record may be remanded for correction, and the appellant may also within thirty days file a supplemental brief as requested.

If appellant fails to pay such motion costs or fails to supply such deficiencies in his statement of case and brief within thirty days the respondent’s motion will be granted.

Christianson, J., disqualified, and did not participate.