*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).
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),
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.