Northern Oil & Gas Co. v. Birkeland

1 Reported in 203 N.W. 228, 205 N.W. 449, 206 N.W. 380. On April 9, 1925, the following opinion was filed: Motion to dismiss the appeal of the plaintiff from a judgment in favor of the defendants. 1. One ground of the motion is that the bond and fee on appeal were not filed within the time fixed by the statute. The statute requires that an appeal shall be made by the service of the notice on the adverse party and on the clerk. To make it effective the party appealing must file the notice and bond on appeal with the clerk of the court below and pay the appeal fee within the time provided, which, in case of an appeal from a judgment, is six months from its rendition. When a party in good faith gives notice of appeal and omits through mistake to do any other act necessary to perfect it the court may permit an amendment on such terms as may be just. G.S. 1923, § 9492. The provisions of the statute are quoted more at length in Wheeler v. Crane, 141 Minn. 78, 169 N.W. 476, 597. The judgment was entered on July 1, 1924, and the notice of appeal was served and filed on December 30, 1924. The bond was not filed and the clerk's fee was not paid until January 6, 1925. In Wheeler v. Crane, 141 Minn. 78, 169 N.W. 476, 597, the appellant did not pay the appeal fee until after the lapse of time for appeal. He made no claim of mistake, offered no excuse, and the appeal was dismissed upon the ground that he did not bring himself within the provision authorizing relief in the case of mistake. After the dismissal the appellant applied to be relieved of his default. It was held that the facts presented did not justify relief. In Baxter v. The Orinoco Co. Ltd. 158 Minn. 530,197 N.W. 219, payment of the appeal fee was not made in time and the appeal was dismissed. *Page 469 Later the appellant moved for relief from his default, suggesting mistake, and upon consideration of the merits his motion was denied. Baxter v. The Orinoco Co. Ltd. 160 Minn. 535,202 N.W. 829. The result of these cases is this: If the notice of appeal is served in the way and within the time provided by the statute, relief may be given from a failure through mistake to file the notice or appeal bond or pay the appeal fee within the time fixed. 2. The showing of counsel in proof of mistake is not satisfactory. At the best counsel were neglectful. They claim to have divided the labor and each proceeded upon the theory that a certain part was done by the other. There is a suggestion that it was not thought necessary to file the bond and pay the fee immediately. This weakens rather than helps their story. The parties had considerable controversy after the trial, there was trouble over costs and in settling the case, and perhaps some misunderstandings. A paper book of 1,150 pages was filed on January 24, 1925, and the motion to dismiss was not made until February 19, 1925. No prejudice has resulted. We conclude that appellant should be relieved of its default. A further ground of the motion to dismiss is that the plaintiff corporation has been dissolved by a decree of a court of Texas under the laws of which it was organized. This ground of motion is reserved for consideration when the case is heard on the merits. Motion to dismiss appeal denied. On October 23, 1925, the following opinion was filed: