STATE of North Dakota, Appellee, v. Craig SILKMAN, Appellant.
Civ. No. 10095.
Supreme Court of North Dakota.
March 18, 1982.
I concur in the result reached by Justice Pederson in the majority opinion. Insofar as the majority opinion may imply that
“(c) Time for Motion for New Trial. A motion for a new trial must be made within the following time after the return of the verdict or rendition of the decision:
“1. Upon the ground of newly discovered evidence, within 6 months; and
“2. Upon any other ground, within 60 days, unless the court, for good cause shown, shall extend the time.”
In this instance there was no jury trial. As Justice Pederson has noted in footnote No. 1, in Zimmerman v. Kitzan, 77 N.D. 477, 43 N.W.2d 822 (1950), this court determined that the filing of findings, conclusions, and order for judgment is a necessary part and the final act in the rendition of the decision. There is no indication that the Kubisiaks were aware that findings, conclusions, and an order had been filed. There are no affidavits of mailing or of service to so indicate. I do not believe that we should interpret the rule to mean that the time in which to file a motion for new trial expires regardless of whether or not the movant has knowledge that a decision has been rendered as defined in Zimmerman.
ERICKSTAD, C. J., and PAULSON, J., concur.
Owen K. Mehrer, State‘s Atty., Dickinson, for appellee; submitted on brief.
Craig Silkman, pro se.
Silkman seeks appellate review of a district court order denying his request for a jury trial in a non-criminal traffic case. The State urged for dismissal of the appeal on the ground that the order of the district court lacked finality and was, therefore, non-appealable.
Silkman was charged with driving 95 miles an hour in a 55-mile-an-hour speed zone. Pursuant to
“5.a. If a person is aggrieved by a finding that he committed the violation, he may, without payment of a filing fee, appeal that finding to the district court for trial anew, and the case may be tried to a jury, if requested.”
Silkman contends that this statute grants him the right to a jury trial upon request. In situations where a statute is susceptible to two different meanings, it is the duty of the courts to determine the legislative intent. See, McCrosky v. Cass County, 303 N.W.2d 330 (N.D.1981). The legislative history strongly supports Silkman‘s argument.
Although we agree with Silkman‘s argument on the jury question and assume that he will now be given a jury trial,1 the denial of a jury trial is not appealable. In most cases tried in a district court, denial of jury trial may be claimed as error when there is an appeal from the judgment. See United Hospital v. Hagen, 285 N.W.2d 586 (N.D.1979). We must emphasize, however, that no appeal will lie from a judgment of the district court, with or without a jury, in a non-criminal traffic case. See
The appeal is dismissed. No costs are allowed to either party.
ERICKSTAD, C. J., and VANDE WALLE, J., concur.
SAND, Justice (concurring specially).
I agree with the opinion and concur in the result but I do not agree with footnote 1 if it is intended to invite a petition to this Court to exercise superintending power in a non-penal traffic violation, especially where the Legislature has made special efforts to reduce the status of such violation to an infraction and has limited the appeal to district court. If the Court were to exercise its original jurisdiction authority in such matters it would run contrary to the case law established by this Court ever since it has existed.
PAULSON, J., concurs.