*1 5«9 claimants, plaintiff: dif- time issue raised classification of Is reasonable are re- neigh- who within which a claimant file his ferentiating between those must sixty days, and bors, file port must within who unreasonable? determination occupants delayed are or issue now be to some fu- owners those who controversy. sprayed, who would ture land was which only limita- subject usual statute I am that ERICK- authorized state 28-01-40, Dakota North tions. Section STAD, J., in this joins me dissent. Code, requires that service Century person upon the for whom work made requires done, 28—01—41
was while Section owner,or occupant of the name of the the work was done property for whom any sense out of set out. To make
must be name of owner only necessary occupant where or would be PUBLIC DISTRICT WAHPETON SCHOOL other than the claimant someone Corporation, 37, Plain- NO. a Public occupant property or owner Respondent, tiff operator ren- applicator or whоm v. labor service. dering DAKOTA AS- NORTH EDUCATION construing a has held that This court Nonprofit SOCIATION, Corpora- given must be used therein statute words tion, Appellant. Defendant commonly ordinary, under- plain, their Civ. No. 8505. meaning. Johnson, v. 76 Bronson stood Supreme of North Dakota. Berg v. 122, (1948); N.W.2d 819 33 N.D. 19, March 1969. 153, A.L.R.2d Torgerson, interpret must The court (N.D.1959). April Rehearing Denied 1969. as it is plain unambiguous statute speculation written, indulge in cannot qualifications probable possible
as to might have in the minds been given The statute must be ef-
legislators. plain and according to obvious
fect Nelson, Rausch
meaning. v. (N.D.1965). argument
There can be valid in this case defines “claimant”
claimant. Webster plaintiff’s right. asserts a
one who of action
cause claim,
clearly right. of a is the assertion “claimant” as court has defined one right Weisger
who asserts or demand. Bureau, Compensation
ber Workmen’s 165, 292 128 A.L.R. N.W. (1940). my view that
It is therefore is a within the this case “claimant”
meaning here consid- statute under true, being
eration. That squarely basic constitituonal faced the *2 Bullís,
Lewis Wahpeton, & plaintiff and respondent.
Rausch Chapman, Bismarck, & for de- fendant appellant. Judge (on
STRUTZ, reassignment). plaintiff district, school finding its depleted finances in a condition, submitted to the voters of the district the increasing taxing authority. pro- posal rejected by the voters. Because of such defeat polls, at the school board, the governing body of the school district, found that funds available district were insufficient to meet the de- of its mands teachers for inсreased sala- plaintiff ries. The thereupon determined only way such demands could be met the elimination of certain courses from its curriculum. resolution eliminating certain courses thereafter was adopted, thus eliminating certain teaching positions system. in defendant, terclaim, ma- representing together a vast petition with sys- plaintiff’s teachers in the plain- jority of thereupon that the tiff district tem, interfering demanded school with sug- teaching positions, mеmbers, or its restore any issuing offering obtain district gested any salary regard increases contract needed for teachers with funds *3 any position plaintiff certificates with the by the issuance of school dis- teachers trict, of by during the form time the defendant was or some other of indebtedness ne- enjoined by pre- of restrained and During the course the order spending. deficit representa- viously by the issued the from fur- parties, between and gotiations court, impressed upon contacting any the ther organization for the the defendant tives of purpose recruiting the “onus” school district that of the plaintiff teachers plaintiff temporary the teachers’ de- A failing to accede to school of district. plaintiff, and plaintiff be on the order mands would so the court, the signed by to to if matters were settled and an order teachers, why temporary “sanctions” show cause restrain- satisfaction of imposed against perma- school dis- be order could to recommending hearing trict would include nent set for at time which the same and at to cause place the defendant association which order show members of brought proceedings Education to members the National by plaintiff do not con- was to heard. Association such members district. employment plaintiff sider parties appeared court Both before the meeting between the was set day of at three April on 24th 1968 10, meeting April 1968. Before that to pursuant to such show o’clock orders however, convened, went into its hearing, After issued cause. court temporary the district court and obtained provided: against sanc- the use of “I. Thereupon the the defendant. tions Association, many of Wahpeton Education temporary restraining order “That the also whose members are members of the 10th against defendant on issued association, im- voted dеfendant State to pe- day April, 1968be continued requested pose the defendant sanctions and riod of two weeks from and support in its it action. April, 1968, time day at 24th which its merits. matter will be heard on said temporary defendant, re- was served “II. cause, any defendant if quiring the show officers, had, why defendant, em- temporary restraining “That or- ployees, agents, should be restrained or against this ders issued enjoined, pending from im- April, day the 15th 1968 plaintiff on plaintiff, or posing sanсtions be, day April, and the 19th recommending mem- from defendant’s dissolved; provided they hereby are Educa- bers or members the National however, in the that those teachers Wah- accept they tion Association do not signed con- peton District who School dis- employment with the school by the Board on tracts issued School set for trict. The order to cause was show P. 17, shall until 5:00 April 24, 1968, April three o’clock at on April 1968 withdraw said M. on p.m. they desire, provided contracts so submit- defendant, those who served with further that teachers being on the issu- resignations as a result of complaint re- ted summons and with the order, said shall have until coun- ance contracts filed answer and April provides, among 27-02 things, 5:00 P. M. to with- other modifies, an order resignations.” grants, draw said which or dis- solves an is an appealable order. 25, 1968, order, April From such dated taken the signed by original court. notice, enjoined district which we must first doing any might defendant act appealed determine is whether carrying interfere with the out from is an order. This court required functions of the appeals has held that law; imposing and from sanctions or from lie, interlocutory except will not orders recommending to members of the North expressly cases where appeal is authorized Dakota Education Association Na Swedberg, statute. Nordenstrom v. Association, any tional Education stu *4 (N.D.1963). N.W.2d 285 either, they dent affiliates of do by emplоyment plaintiff. consider Had orders, Such where not made ex would, upon notice, this order been made it pressly appealable, ap are reviewable on opinion, in our appealable been an or peal from judgment, the order and Thus, court, der. the district when the facts essential the review are em order, refused set aside bodied in the settled statement of the case order original which refused to vacate the part made a appeal. record on of order, which had been made hear without Mann, Burdick v. N.D. 231 N.W. ing, appealable was an order under Section 545 (1930). Century 28-27-02(7), North Dakota Code. Century North Dakota The mere fact that the district court refus- Code, out appealable. sets what orders are es to vacate pe- or dissolve the order for a provides Subsection 7 of that section only riod an two additional weeks would an order made district court or not, opinion, in nonappeal- our make this a thereof, judge notice, is ap- without not an merely able order it because is a pealable order; but an order made order. If the trial court could make this district court after upon is had no- order nonappealable refusing set tice injunction period time, aside the “* * * wit, case, two in vacates refuses weeks to set instead aside an previously vacating refusing order, order to vacate the it without orders, notice appealed could issue a supreme of such series each of provisions when which would refuse to vacate of this or dissolve chapter appeal might injunction an period have been two-week taken from such notice, prevent order made thus appeal an so such order. had the it upon same been made Or a temporary could issue notice.” two months of for instead two weеks. We therefore must determine whether orders of the district made with- It will be noted the order notice, out which restrained parties pealed from, the district court did dissolve from doing things, certain would have been temporary restraining previously appealable they orders had been made on parte application (on ex of the de- they notice. If appealable, were then the fendant) against school dis- order, after hearing, which vacated such portion trict. This of the order thus was an previous part orders in and which refused against dissolved n to set -aside previous and vacate such or- as well as part, ders in would anbe order. modify refused to or dissolve an previous against defendant, orders restrained hearing. and en- issued after joined respective parties such, As doing is held to be an or- certain acts. Subsection of Section der under provisions 28- of Sections 28- not, “1. fact, Order did termi- 28-27-02(7), North Dakota 27-02(3) ; nate but still in effect held Century We so Gillies Code. (1952),
Radke,
“2. The issue is not moot because of
Lynch, 138
Olson v.
State ex rel.
secondary
practical
question
(N.D.1965).
e.,
importance (i.
liability under
next
to the issue of whether
come
We
plaintiff’s
bond) which turns
appeal is
question
raised
moot.
appeal; and
the result of the
that, immediately aft-
parties
Both
concede
“3. The matter
con-
before the Court
from,
entry
appealed
er thе
the order
im-
overriding
tains issues
and the
negotiations
between the
portance
de-
that the
of their
value
that the contro-
teachers were resumed and
precedent
termination as a
is suffi-
days
versy was
two
thereaf-
settled within
cient
rule
overcome the
Thus,
appeal
ter.
at the time the
was tak-
questions.”
considering moot
en,
full
settlement
the issues between
had been reached.
appel
agree with the
We cannot
lant’s contentions. The first contention
Ordinarily,
appeal
will be dis
preliminary
clearly
is untenable because
missed if the
raised
will be
when the rea
dissolved
if,
has become moot
without fault
injunction have
granting such
sons for
respondent, an event has occurred which
*5
longer
and it
can serve
ceased
exist
no
question
makes determination of such
un
in Brace
any
purpose. As we stated
useful
necessary
controversy
and leaves no actual
276, 42
County, N.D.
v. Steele
Bye,
to be dеtermined. Hart v.
(1950):
(N.D. 1957);
ex rel.
State
Schafer
Gussner,
(N.D.1958);
termination aas is sufficient to against overcome the rule considering mоot questions. say, This court did in Hart v. TEIGEN, Chief (concurring Justice Bye, exception supra, that an to the moot- specially). question appeal rule is that the will not be I concur in the result reached the ma- if it dismissed involves a great jority. However, I believe appeal public However, interest. that rule cannot should be dismissed the ground that the applied in this In the proceedings case. order from which the is taken is not before the trial pro- no evidencе was this court does not duced other than returns in resist- jurisdiction the subject matter.
ance to the respective of the continuance restraining orders. defendant has de- commenced action seek- nied that impose sanctions, if it were to permanent injunction against de- such sanctions would alleged by be as fendant. The defendant then counter- plaintiff Wahpeton School District. On permanent injunction claimed hand, other Wahpeton plаintiff. pe- Each of the also *6 School District has denied that it would at- injunction pen- titioned the court an for tempt to restrain the defendant doing from lite and each parte dente obtained an ex any acts might which it lawfully do. We restraining pending hearing the on have no evidence in this case from which petition. hearing the The notice of on the we can just determine what “sanctions” petitions restraining and the orders were imply. determine, would Neither can we in the an form of order to show from the record us, way, before in what restraining cause in the a nature of order. any, would interfere with the hearings The each order to on show cause legal rights of the ques- defendant. These day. day for the same were set On tions cannot be upon determined partial parties hearing appeared each of record which we have before us. submitted affidavits in resistance the is- to injunction. During temporаry a
suance of opinion, indicated desire concurring hearing a which dis holding negotiations. sents from the trial court herein to resume The ap- on the n pealability temporary recognized meaningful negotiations that restraining or der, temporary has opinion been filed. be held if both could asserts tentatively that if a It trial court were remained in effect. to continue a re orders temporarily time, dissolve one order for an determined to unrеasonable party in effect. temporarily restrained would not continue the other be without appropriate remedy The period allowed was two weeks. party because such apply states that after two weeks supervisory could to this court order entered for its mer- be heard on making assertion, writ. In this “the said matter will the writer to supervisory fails to the fact that a matter” has reference mention its.” “said injunction. petitions for sought writ was in this case NDEA and both said, it sylla- in W.2d wherein is stated clear. court in the This was continuing bus that “an order a temporary action : explanation of its hearing is an “ ** * going dissolve the I am So [Emphasis order.” body In the added.] period. At the this opinion the court made clear what period today, from end the two-week it meant the word “after” in the above hear- necessary have a further if it is syllabus. It stated: matter, can hear it then we ing this on “ * n * * However, original both the as what sanctions the merits is- on necessary at suance and its If it is subse- imposed. quent school board continuation at the close point restrain hearing May be con- on 10 were which would orders issued doing acts taking jurisdiction interfering with court had sidered unlawful or both Association, subject parties. matter and Dakota Education No North peal that re- taken from at time entertain the order continu- ing injunction, might as have been quest.” provisions done under the of Section trial court has not Thus, my opinion, the [Emphasis NDRC 1943.” add- tempo- aside refused to set nor vacated ed.] previously made rary restraining orders hearing case this closed notice, contemplated Section appealed and the order from is “an or- quoted in the ma- N.D.C.C., 28-27-02(7), der made the district court after a hear- decision; final opinion. It made no jority notice,” upon as provided is had all is- instead, jurisdiction retained N.D.C.C., 28-27-02(7), defining sues. appealed ordеrs. The order from, my opinion, appealed The order interlocutory merely is a tentative or- interlocutory order intended a tentative is der to remain in effect until such time as continuance of during the be effective parte judge made the ex who cause. to show hearing on orders a chance reconsider his decision calendar action was The main adversary a final proceeding makes or- deci- be reached for сould not trial and completed. Such hearing der after the time, trial court did sion at been en- appealable order would have petitions a consideration of not reach the order to tered, had on the merits. temporary injunctions entry following held cause been show *7 setting order the matter of tentative is not of this character A order tentative in the merits two weeks. hearing on for where, a infrequently made However, attempt secure was made to no ju- here, exercise of calls for the the relief The order which was an order. purpose inform- of dicial discretion appeal taken which this is entered from its to ascertain as to duties ing itself subject to the further expressly made was by ob- be taken final action what was hearing the court when order of it is while serving results the order of my opinion, is in and, resumed ordered pro- Ordinarily, by oral operation. in hearing a which made after оrder an be nouncement, parte will order the ex aside an refuses set or to vacates hearing is while the in effect continued notice, as defined previously day. The fact another to continued holdings, see For similar statute. the. signed writing and order is made Dunmore Eagen v. ex rel. Commonwealth change the character of judge does 440, Pa. Directors, 343 Borough School act. in man- proceeding a 468. This was A.2d right in- taxpayer the to a damus secure majority have and the appellants The school of a and records 974, spect the accounts Radke, N. 78 N.D. v. Gillies cited district. The court issued its is, writ of man- ing effect, species a injunc- of damus board, members of school tion. If is the intent majority, of the commanding inspection is, them course, to allow the contrary to what we why or to prayed show cause the relief said previous holdings, such as Gillies v. should not Radke, be heard. After a supra, and State ex rel. Olsоn v. continuing court entered an order Lynch mat- (N.D.), 138N.W.2d 785. ter until a further order the court In an action permanent for a permit directed that the board members an may there types issued, be three of orders inspection and examination of the books all injunctional of which are in nature. taxpayers agents their for certain First, may there parte be an ex restraining day limited except Sunday. hours of each order which is effective until the court has Pennsylvania Supreme Court dismissed held its on the order to show appeal an ground from this order on the cause. restraining fol- that it was tentative interlocutory, lowed a temporary injunction which appealable. therefore not during pendency effective In (Tex.), Green v. Green 247 S.W.2d and, finally, action after the trial 583, Appeals the Civil Court dismissed an action, permanent injunction may be appeal judgment from a or order which on issued. This action is still in the first its face disclosed that trial court had phase processes. these areWe asked to reserved further action thereon a later order, review is- was being interlocutory date as an parte parte sued ex and still retains its ex pealable order. temporary injunction character. A has not granted. been process determining majority also cites Subsection 3 of granted pend- whether it shall be was still support its N.D.C.C., purported appeal when taken. appealable. decision that the order is provides an subsection purported appeal nonappeala- from a refuses, modifies, “grants, dissolves jurisdiction upon ble order does not confer modify or refuses to or dissolve Supreme review the action of injunction, whether such the trial and the Court will dismiss special issued in an action proceeding” motion, own whether or is order. This subsection point respondent. not the is raised application here. We are con- Keystone Corpo- Development Trautman v. cerned with pur- order the 817; Applica- (N.D.), ration 156 N.W.2d pose which is restrain opposing Transport, (N.D.), tion of Hvidsten Inc. party, pending hearing application on the 73; Roy (N.D.), Schrock v. temporary injunction. Restraining 703; Ferguson Jensen, 111 N.W.2d type provided orders of this are 560; Kennelly v. N.D. Sections If, 32-06-06 and 32-06-07. Co., Northern P. R. 170 N.W. the hearing show'cause, on the order to 868. temporary injunction issued, the re- order ceases to exist *8 majority own has the trial stated limitations. The is permitted, by continuances, court is the court after the close of the ap- are not orders which make bemay under either pealable Subsection periods is short there time 3 or Subsection 7. If Subsection is why no reason it could not issue a series plicable here, as majority, indicated orders, of such or to continue such an or- may then it logically follow that аn ex der for months instead two weeks. two parte restraining order is also many There are occasions when a trial * * * is an “grants reasons, cogent continues a hear- injunction” in the sense that a restrain- day. to another Such continuance based time and as to be reasonable must party ag- is If a reasons.
upon valid because continuance the court’s
grieved time or there as to
it is unreasonable therefor, he is not without
just basis may
remedy. Application be made to this supervisory writ, and this
Court powers
Court, superintending under Constitution,
provided by trial to resume the direct court act if it the trial and to finds abused discretion.
KNUDSON, J., concurs in the above.
SECO, INC., Respondent, Plaintiff
v. COMPANY, & TRUCKING
GAUVEY RIG Appellant. Inc., Defendant and INC., SUPPLY, AUTO
THOMAS Respondent, Plaintiff and COMPANY, &
GAUVEY RIG TRUCKING Inc., Appellant. Defendant and
Civ. Nos. 8504.
Supreme of North Dakota.
Feb. 1969.