STATE оf North Dakota, for the Use and Benefit of the STATE HOSPITAL, Jamestown, North Dakota v. Sam HINTZ and Elva Hintz, husband and wife
Civ. No. 9596
Supreme Court of North Dakota
July 11, 1979
281 N.W.2d 564
Appellant‘s brief and oral argument repeatedly refer to matters in that partial transcript. Neither appellee‘s brief nor his oral argument before this court raise any objection to the contents of the record or to appellant‘s argument. We said that it was not this court‘s function “to remake the record for review” in Waletzko v. Herdegen, 226 N.W.2d 648, 653 (N.D.1975). Although we may not “import absolute verity” to the clerk‘s certification of the record as we formerly did to the trial judge‘s certified statement of the case [see Zarak v. Hjelle, 154 N.W.2d 377, 379 (N.D.1967)], those who have objections must make “seasonable application, [so that] it may be . . . amended as to speak the truth.” 4A C.J.S. Appeal & Error, § 1114, at 1144. That would have required appellee to move for remand for corrective action in the district court before, not after, presentation of the case to this court. In the absenсe of any objection whatsoever from one who has notice and ample opportunity to object, we must assume that the record is satisfactory.
It may very well be a significant factor in this case that the district judge who decided the case did not have all of the information that had been presented to the district cоurt, some of which we did have. We acknowledge that the judge who heard a part of the testimony was replaced, after an election, by the judge who made the decision. Litigants should not be prejudiced in their lawsuits by a judge change. Perhaps when all the information is produced and considered, no prejudice will be evident. Thе surest way to clear up the problem is to remand for a new trial on the appropriate issues.
The petition for rehearing is denied and the clerk of this court is directed to remand the case to the district court for further proceedings.
ERICKSTAD, C. J., and PAULSON, SAND and VANDE WALLE, JJ., concur.
Freed, Dynes, Malloy & Reichert, Dickinson, for defendants and appellees; argued by George T. Dynes, Dickinson.
This case involves an attempt by the State Hospital at Jamestown to collect on an account from Sam Hintz and Elva Hintz certain sums allegedly owed to the hospital for the care of their son, Sam Hintz, Jr., now deceased. Pursuant tо
Throughout most of his life, Sam Hintz, Jr., was institutionalized at the State School at Grafton and at the State Hospital in Jamestown. In 1963, he was transferred from the State School to the State Hospital and remained there until his death on July 4, 1972.
In 1958, during the time their son was at the State School, the Hintzes made arrangements with state administrators concerning payment toward their son‘s expenses. It appears that it was agreed that the Hintzes would contribute the sum of $1.00 per day toward costs incurred for their son‘s care. The record does not disclose whether or not this payment arrangement was made pursuant to
On January 13, 1977, the State Hospital commenced this suit against the Hintzes for the outstanding balance of the costs incurred by the State Hospital. The State Hospital alleged that the Hintzes were, as responsible relatives under
In its order granting summary judgment, the district court held that: (1) there was no genuine issue of material facts; (2) the Hintzes were not, pursuant to
The parties agreed that
“No statute of limitations or similar statute or the doctrine of laches shall bar the right of recovery fоr the expenses incurred by the state for care and treatment at the state hospital or state school from the patient or his estate, . . .” [Emphasis added.]
Here, the action has been commenced against the Hintzes as responsible relatives under
The State Hospital asserts that it was error for the trial court to hold that the six-year statute of limitations (
“The following actions must be commenced within six years after the cause of action has accrued:
1. An action upon a contract, obligation, or liability, express or implied, subjeсt to the provisions of sections 28-01-15 and 41-02-104.”
In order to apply the limitation in the above section it is first necessary to classify the account involved in this action. In Everson v. Partners Life Ins. Co., 268 N.W.2d 794, 796 (N.D.1978), our court defined a “mutual account” as:
“. . . an account wherein are set down by express or implied agreement by the parties concerned a connected series of debit and credit entries of rеciprocal charges and allowances, where the parties intend that the individual items of the account shall not be considered independently, but as a continuation of a related series, and that the account shall be kept open and subject to a shifting balance as additional related entries of debits аnd credits are made thereto, until it shall suit the convenience of either party to settle and close the account; . . .”
A mutual account arises where there are items debited and credited on both sides of the account which indicate mutual transactions between the parties. See, generally, 1 Am.Jur.2d Accounts and Acсounting, § 5, at 374-375. It has been said that, as a matter of law, an account is mutual when the evidence of the items thereof shows that, at various times, the respective parties were indebted to each other. Hardin v. Stanton, 14 Ga.App. 299, 80 S.E. 698 (1914). The statute of limitations begins to run on a mutual account at the time the last item is proved in the account on either side (
We conclude that the account involved in this action is a simple open account. The payment arrangement between the Hintzes and the State Hospital consisted of quarterly and annual credits ($1.00 per day), offset by periodic expenses incurred by the Stаte Hospital for the care of Sam Hintz, Jr. The account record consists of debits, which necessarily must be in the form of receivables, and credits showing the amount actually contributed by the Hintzes toward their indebtedness. An account cannot be considered an “account stated” where there is no written acknowledgment of the balance due. See Hansen v. Fettig, supra, 179 N.W.2d at 743-745.
Under the rule enunciated by our court in Hansen v. Fettig, supra, 179 N.W.2d at 744, the statute of limitations on a simple open account runs from the date of each item, rather than from the date of the last transaction. The collection of any remaining balance alleged to be outstanding must be initiated within six years after the date the expense for a particular sеrvice was incurred. See Erenfeld v. Erenfeld, supra, 196 N.W.2d at 409.
Having concluded that the payment arrangement between the State Hospital and the Hintzes constituted a simple open account, we move to the next issue which is whether the Hintzes acknowledged the entire indebtedness, the result of which would toll the statute. Section 28-01-36, NDCC, provides:
“No acknowledgment or promise is sufficient evidence of a new or continuing contract, whereby to take the case out of the operation of this chapter, unless the same is contained in some writing signed by the party to be charged thereby, but this section shall not alter the effect of any payment of principal or interest.”
In Erenfeld v. Erenfeld, supra, 196 N.W.2d at 410, we said that “part payment on a simple open account without a written acknowledgment or promise does not toll the statute of limitations.”
It was not strenuously argued that the Hintzes had acknowledged an obligation to pay any amount in excess of the sums actually paid. It was not claimed that the Hintzes were actually billed, on either a quarterly or annual basis, for the total amount of indebtedness. We conclude that the Hintzes did not acknowledge the alleged balance so as to indicate an existing obligation to pay the remainder.
In its findings of fact, the district court noted that Sam Hintz, Jr., was more than 18 years of age as of July 1, 1971.2 The records of the State Hоspital concerning Sam Hintz, Jr., indicate that he was, as of July 1, 1971, 26 years old. The district court concluded that, under
“In the event of a patient‘s inability to pay for the costs of care and treatment, responsible relatives of such patient at the state hospital or state school shall pay to the supervising department monthly, the actual cost of care and treatment incurred by the state at each institution, or such lesser amount as may be determined by law. For purposes of this chapter and title 25 of this Code, ‘responsible relatives’ shall mean the patient‘s spouse, father, or mother. In no event, however, shall responsible relatives be required to pay such costs for children upon [such children] reaching their twenty-first birthday.” [Emphasis added.]
Even though the Hintzes are responsible relatives under this section, as a matter of law the State Hosрital is barred from collecting any expenses from them incurred after July 1, 1971, because Sam Hintz, Jr., had reached the age of majority.
We conclude that, under
We affirm the summary judgment granted by the district court.
ERICKSTAD, C. J., and PAULSON, J., concur.
VANDE WALLE, Justice, concurring specially.
I concur in the affirmation of the summary judgment granted by the district court,
I agree thаt the account between the State Hospital and the Hintzes was an open account and not a mutual account. Realizing that a majority of the court in Erenfeld v. Erenfeld, 196 N.W.2d 406 (N.D.1972), held that part payment on a simple open account without a written acknowledgment or promise does not toll the statute of limitations, I believe the dissent by Justice Teigen (Knudson concurring) to that opinion correctly states the law on that matter. As Justice Teigen pointed out, the majority in Erenfeld relied upon the previous decision in Hansen v. Fettig, 179 N.W.2d 739 (N.D.1970), for the proposition that part payment on a simple open account without a written acknowledgment or promise does not toll the statute of limitations, and that Hansen does not so hold. A reading of Hansen confirms that conclusiоn in my mind. To me, any other conclusion would obviate portions of Sections 28-01-36 and 9-12-07, N.D.D.C.
I do, however, believe that the Hintzes made payments of one dollar per day on a current-year basis and that such payments had to be applied to the current year‘s obligation to the State Hospital. This is made clear by the method of payments, i. e., each payment covered a three-calendar-month period and was computed at exactly one dollar per day for each of the regular four calendar quarters through 1968. After that time, payments were made in the amount of $365 for each year. In addition the other documents, including interrogatories and affidavits, attached to the motion for summary judgment establish that the Hintzes were paying one dollar per day for the immediately preceding three-calendar-quarter period and through the payment made January 9, 1968, and for the immediately preceding calendar year after that period. Thus the Hintzes were not making payments which could be applied to the obligation of prior years to the State Hospital. Therefore, even though I believe the correct conclusion is that part payment on a simple open account without a written acknowledgment or promise does toll the statute of limitations, I do not believe the statute was tolled in this instance because the payments made by the Hintzes were for only the current-year period. Any obligations which might have been due for previous years (and this is in dispute since the Hintzes have alleged an accord and satisfaction of one dollar per day for the hospital care of their son) would bе barred by the statute of limitations because there was no subsequent part payment to toll the statute for those years.
SAND, J., concurs.
PEDERSON, Justice.