*1 when it is in the interests of the best child

to not have with the visitations non-custodi- B., parent.

al v. W. E. C. B. D. 298 N.W.2d (N.D.1980). Although the trial court provision

made no for visitations between finding

Darlene and Debbie made no

it would be best in Debbie’s interest to not Thus,

have Darlene. visitations with necessary

conclude that it is remand disposition district of this court for mat-

ter.

In opinion accordance with this the dis-

trict judgment, court’s dated December

1980, is as it reversed insofar decrees that child; deprived

Debbie is a is reversed inso-

far disposition as it regarding contains no Debbie;

visitation between Darlene and

and is all respects. affirmed in other

remand this case to district court for

disposition involving of the matter visita-

tion between Darlene and Debbie. PART,

JUDGMENT IN REVERSED PART,

AFFIRMED IN AND REMANDED

WITH INSTRUCTIONS. WALLE, PEDERSON,

VANDE PAUL- JJ., SAND,

SON and concur. FREDERICK,

Gerald Plaintiff Appellee,

Ted Kubisiak, KUBISIAK and Helen Cafe, Ranger

d/b/a Defendants Appellants.

Civ. No. 10103.

Supreme Court North Dakota.

March *2 Schwartz, Hebron, plaintiff

Ronald appellee. Fleck, Mather, Mayer, Bis- Strutz & marck, ar- appellants; for defendants and gued by Gary Wolberg, R. Bismarck. Wolf, Peterson, Schmitz, Wheeler, Mc- Johnson, Bismarck, curiae, Donald & amicus Kubisiaks’ notice Reporters North was filed on Dakota Shorthand Court Ass’n; Peterson, argued by David Bis- October 1981. Because there no record L. entry service of either marck. trial, denying

order the motion for PEDERSON, 60-day time limitation contained Rule Justice. Therefore, NDRAppP, yet begun. has not Kubisiaks from *3 question the of not whether or this motion denying and from order an their motion for 59(c), NDRCivP, for a new trial under Rule judgment new We trial. affirm the and appeal also the extends time for is moot. appeal dismiss the from the denial of mo- judgment tion for trial. However, new The awarded a there remains viable possession portion Frederick of a of a question build- the of the as to timeliness motion ing in operated which the Kubisiaks had by untimely a for new trial —issues an raised prede- restaurant as tenants of Frederick’s new motion for trial are reviewable ownership building. cessor in properly preserved of the unless otherwise on an appeal judgment. from the There is no purchased the building When Frederick need for a motion for a new trial in the 1980, in October or November of the Kubis- preserve appellate trial court to for review tenants, iaks were hold-over their lease hav- at occurring errors of law trial. See ing May 31, on expired 1980. When the NDCC, 59, 28-27-27, superseded by Rule § voluntarily Kubisiaks failed to surrender Bell, NDRCivP, 6, 2 N.D. and Sanford v. 48 possession, an brought Frederick action for (1891),syllabus It is N.W. 434 6. elementa County forcible detainer in the Court Stark ry appeal judgment, our that on an from a With Increased Jurisdiction. See 33- §§ scope questions of review of of law is un 47-17-05, 08-12 and The suit NDCC. was questions limited. of fact cases tried On jury. Findings tried to the court without a court, by 52(a), to the we are limited Rule of fact were prepar- and conclusions of law appeal deny NDRCivP. from an order On required by 52(a), ed as Rule NDRCivP. trial, ing apply a for a motion new an reaching Before of appeal, the merits the Hoge abuse-of-discretion standard. we must address motion Frederick’s in this Hoge, (N.D.1979). 281 N.W.2d 557 We have court to the He appeal. dismiss contends rule, statute, by found no or decision this that the for motion new trial and the notice clearly describing scope court of our review appeal of timely were not filed. appeal when confronted with an from a of judgment Timeliness an to this court from and the denial of motion for pursuant 4, is to determined Rule grounded upon 59(b)(7), trial Rule NDRAppP. provides It the though may that notice of logic NDRCivP. Even lead us appeal shall be filed with the clerk of the to the timely conclude that motion for new trial court the days within 60 of date of upon point the trial based a of law results in a entry judgment service of of ap appellate scope order shift of of review from “un pealed discretion,” from unless the is by time extended limited” to “abuse of we need the trial court. In- question this case there is no not address the here where there showing entry judg timely of service either was no motion new trial. for The ment denying or order the motion for new motion trial for new was not made within addition, trial. In the trial court 59(c), extended the time Rule prescribed by 8, 1981, time for to October and the NDRCivP.1 conclusions, judgment 1. The motion for a new trial and should have been order for is a neces days sary part, made 60 within of the “rendition of the and the final act in the rendition of a . 59(c), decision.” Rule NDRCivP Prior to In the the decision.” instant case trial court adoption rule, language 17, 1980, orally, of the identical on December at the end of the 28-1903, trial, counsel, was presence parties § used in Dakota North Revised in the of all and Kitzan, pronounced findings, Code of In 1943. Zimmerman v. the results. Written con 477, (1950), signed 43 N.W.2d 822 this court said order clusions and for were findings, that “we conclude that the and The filed on December motion required to kept by be only by county the court issue raised motion the jurisdiction. to with increased In alleged was an error of law—the failure when preserve Legislature mandatory the made proceedings.2 a record of the That it that dis- issue, court, appoint trict reporters, the courts shorthand properly if raised in trial 27-06-03, NDCC, left the appointment preserved appellate § would have been reporters discretionary of court in the coun- judgment, review of without necessitat the jurisdiction. with instance, ty court increased ing a for new In this motion trial. however, only issue, apart from conclude there is no error argument presented on the denial of new court, at law when a other than a district trial, contrary was: “The court, a tape uses recorder in of a lieu re the law the evidence and must be and court reporter preserve shorthand rec versed.” testimony proceedings. ord of Short may

When the Kubisiaks caused to be use reporters tape filed hand also recorders like, apparently complete with this court an they if as does this court. New trials *4 transcript concededly pro- 59(b)(8) accurate of the are awarded under Rule on the ceedings by judge transcript. certified who the inability the heard basis of to obtain a case, argument They the it made their that no are not for have awarded reasons that preserved bearing party’s ability record no on the obtain proceedings of the was to adequate transcript. frivolous. “When of a an the reason rule ceas- es so the 31- should rule itself.” Section appeal judgment the from the On NDCC; 11-05(1), Ecklund, v. 68 Nelson any the claim of Kubisiaks make no that 724, 273, (1938). 283 N.W. 275 See findings clearly the of fact are erroneous. 59(b)(8), Rule NDRCivP. accordingly presume they are correct. by curiae,

Supported amicus the Kubis- Agency, Alumni Ass’n of v. Hart See Univ. argue iaks that Legislature Inc., 119, (N.D.1979). the has deter- N.W.2d 121 Al reporter 2, mined a pre- that shorthand shall is # though it labeled Conclusionof Law pare the notes from which the is as a the transcript the trial court found fact that 27-06-01, prepared. NDCC, parties agreed Section re- to the on terminate lease 1, quires errone judge appoint clearly a court to a 1980. It district December reporter ous. shorthand to the office of court 27-06-03, reporter, and 27-06-04 and §§ parties The presumption that the 11-17-09, NDCC, all that imply shorthand a term expired the lease for have renewed

recording must be the the method used in acceptance by year payment of one the and preserve district courts of this state to the 47—16— application. of has no See § rents way analogy, testimony. By record of of 06, contrary The is not NDCC. the Kubisiaks then that rationalize 27—§ to law. 08-24, NDCC, requires recording in similar denying new appeal The from the order the county jurisdic- courts with increased the is af- trial is dismissed and tion. on Although no costs are allowed firmed. Although 27-08-24 contains § dismiss, the Frederick is entitled motion ambiguous language, some in subdivision judgment. on the from the to costs (11) clearly establishes shorthand SAND, J., among papers notes are not the records or concurs. February for 2. new trial include: “When without for new trial was dated and filed Causes party days pronounce- negligence part 1981. is 62 oral fault aggrieved, the of the This after or on days party ment of the results of the trial and 61 such is unable to obtain after complete transcript the the of the written decision. No effort a correct and secure testimony given proceed-

was made to obtain an extension of for time and instructions good pursuant 59(c)(2), 59(b)(8), ings cause Rule at the NDRCivP. had trial.” Rule NDRCivP. Kubisiaks retained their present counsel the sometime after had been taken. WALLE, Justice, concurring VANDE

specially. Dakota, Appellee, STATE of North

I by concur the reached Justice result opinion. the majority Pederson in Insofar SILKMAN, Appellant. Craig majority opinion may imply as the No. Civ. 10095. N.D.R.Civ.P., 59(c), Rule an establishes ab- solute time within a which motion for Supreme Court of North Dakota. may made, trial regardless be of whether or March knowledge not the movant has of the rendi- decision, tion holding. of the I disavow that 59(c) provides:

Rule

“(c) Time for Motion for New Trial. A

motion for new trial must made be

within the time following after the re-

turn of the verdict or rendition the

decision: Upon

“1. ground discov- newly months; evidence,

ered within 6 Upon any ground,

“2. other within 60 court,

days, good unless the cause

shown, shall extend time.”

In this jury instance there was no

trial. As Justice Pederson has in noted Kitzan,

footnote No. Zimmerman v. (1950), 43 N.W.2d 822 this court

determined of findings, con

clusions, and order for is a neces

sary part and the act final in the rendition

of the decision. There is no indication

the Kubisiaks findings, were aware that

conclusions, and an order had been filed.

There are no of mailing affidavits or of

service to so indicate. I do not believe that interpret should the rule to mean that

the time in which to file a motion

trial expires regardless of whether has knowledge movant that a decision

has been rendered as defined in Zimmer

man.

ERICKSTAD, J., PAULSON, J., C.

concur. Mehrer, K. Atty.,

Owen Dickin- State’s son, for appellee; on brief. submitted Silkman, Craig pro se.