Vogel v. Roberts

202 N.W.2d 387, 1972 N.D. LEXIS 105
CourtNorth Dakota Supreme Court
DecidedOctober 31, 1972
DocketCiv. 8828
StatusPublished
Cited by4 cases

This text of 202 N.W.2d 387 (Vogel v. Roberts) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Vogel v. Roberts, 202 N.W.2d 387, 1972 N.D. LEXIS 105 (N.D. 1972).

Opinions

STRUTZ, Chief Judge.

The plaintiffs commenced this action by service of summons and complaint, which the defendants took to their lawyers for the purpose of having an answer prepared and served. The defendants’ attorneys, within the time for answer, served upon the plaintiffs’ counsel a document which they entitled “Notice of Appearance.” This notice in reality was a general denial. The defendants thereafter took no further action, and the plaintiffs served upon them a motion and notice of motion for entry of default judgment. The defendants’ attorneys assert that because of excusable neglect, they were unaware of this motion for the entry of judgment and were advised of it only after judgment had been entered against their clients and an execution had been issued on such judgment.

When the defendants’ counsel became aware of the judgment, a motion and notice of motion to vacate the judgment on grounds of excusable neglect were served upon the plaintiffs’ attorney. After a hearing on the motion, the trial court announced orally from the bench that he was denying the motion to vacate. The defendants immediately served notice of appeal from such oral judgment. Three days after the defendants had taken such purported appeal, the trial court signed its written or[389]*389der denying the defendants’ motion to vacate. The defendants, however, served no new notice of appeal from the written order.

After serving their notice of appeal from the oral order denying their motion to vacate the judgment against them, the defendants took no further steps to prosecute such appeal. On September 24, 1971, six months after the defendants had taken their appeal, the plaintiffs notified them that unless prompt steps were taken to bring the matter on for hearing, a motion would be made to dismiss the appeal. The defendants did nothing further, and we now have before us the plaintiffs’ motion to dismiss the appeal. After the serving and filing of such motion, the defendants did file their appellants’ brief, and the matter now is ready to be argued on its merits in this court.

The only issue before us at this time is whether the motion to dismiss the appeal should be granted.

Section 28-27-26 of the North Dakota Century Code provides:

“When a party in good faith shall 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 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.”

This court has the authority to dismiss an appeal for failure to comply with statutes and Supreme Court rules governing appeals. We have held that the above statute is remedial in nature, and that hearing an appeal on its merits is favored; that if the appeal has been taken in good faith, the court will construe this law liberally to permit the matter to be heard on its merits. Aune v. City of Mandan, 166 N.W.2d 559 (N.D.1969); In re Guardianship of Frank, 128 N.W.2d 355 (N.D.1964).

We also have held that where the party making a motion to dismiss fails to show that the appellant’s failure to file his appellant’s brief, as required by the appellate rules, has resulted in some detriment or prejudice to him, the motion to dismiss will be denied, since the court favors a hearing of the appeal on its merits. Application of United States Crude Oil Purchasing Co., 167 N.W.2d 537 (N.D.1969).

Therefore, if the appeal in this case was properly taken by the defendants, the above principles will be applied in considering the motion to dismiss. We first must consider whether the appeal was properly taken.

The defendants’ notice of appeal was dated and served before the written order denying the motion to vacate the judgment was signed by the trial court and filed in the office of the clerk of the district court. Did this make the defendants’ appeal premature ?

The pertinent statute providing for appeals is Section 28-27-04, North Dakota Century Code. It reads:

“An appeal from a judgment may be taken within ninety days after the entry thereof by default or after written notice of the entry thereof, in case the party against whom it is entered has appeared in the action, and from an order within sixty days after written notice of the same shall have been given to the party appealing.”

[390]*390This court, in Citizens’ National Bank of Northwood v. Larson, 59 N.D. 427, 230 N.W. 292 (1930), held that finality of an order for purposes of appeal is not affected by the date of filing in the office of the clerk of court. Following Citizens’ National Bank, we recently held that an appealing party may waive the service of written notice of entry of an order and may appeal from such order before it is filed with the clerk of the district court. Skinner v. American State Bank, 189 N.W.2d 665 (N.D.1971). In view of this holding, may an appeal be taken from an oral order before the order is reduced to writing and signed by the judge of the district court?

Some courts hold that an oral decision announced in open court is appealable. In adopting this view, these courts conclude that in cases tried to the court without a jury the court’s decision becomes effective immediately upon its oral announcement, and an appeal therefrom need not await the formal entry of judgment. Grzys v. Connecticut Co., 123 Conn. 605, 198 A. 259 (1938). In such jurisdictions, an order or judgment is effective immediately upon its oral announcement, at which time an appeal may be taken; and reducing the order or judgment to writing is merely a matter of subsequent clerical action. Illinois has held that a judgment becomes effective when announced in open court, or, if no such announcement is made, when it is reduced to writing, approved by the judge, and filed. People ex rel. Schwartz v. Fagerhoim, 17 Ill.2d 131, 161 N.E.2d 20 (1959).

This court has not had occasion to pass on the question of the appealability of an oral pronouncement of an order or decision. We have, however, indicated that should such issue be presented, we would hold that an oral decision is not appealable. This court, speaking through Judge Chris-tianson in a case in which a supervisory writ was sought to control the action of the trial court in a habeas corpus proceeding, pointed out that an application for a supervisory writ may be made before the writ of habeas corpus actually is issued and signed by the court since there is no appeal from the determination made by the district court in a habeas corpus proceeding, and an application for a supervisory writ made after the issuance of the habeas corpus writ would be meaningless. The court then went on to say:

“The appellate jurisdiction is the power vested in this court to review and revise the judicial action of an inferior court which is evidenced by an appealable order made by the inferior court or by a judgment rendered by such court.

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Related

Barney v. Suggs
688 S.W.2d 356 (Supreme Court of Missouri, 1985)
Vogel v. Roberts
204 N.W.2d 393 (North Dakota Supreme Court, 1973)

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Bluebook (online)
202 N.W.2d 387, 1972 N.D. LEXIS 105, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vogel-v-roberts-nd-1972.