Community Memorial Hospital v. Olson

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246 N.W.2d 91 (1976)

COMMUNITY MEMORIAL HOSPITAL, HETTINGER, North Dakota, a non-profit corporation, Plaintiff and Appellee, v. Bruce OLSON, Defendant and Appellant.

Civ. No. 9259.

Supreme Court of North Dakota.

September 29, 1976.

*92 Stuart & Jaynes, Hettinger, for appellant.

T. L. Secrest, Hettinger, for appellee.

PEDERSON, Justice.

Judgment for $1,403.51 was entered for the Hospital against Olson on February 27, 1976. On April 26 Olson filed with the clerk of the district court a notice of appeal from the judgment and a document labeled "Specifications of Error."

The record discloses no subsequent steps taken by anyone until August 5 when the Hospital filed with this court a motion to dismiss the appeal because Olson had failed to: (1) file a bond for costs as required by Rule 7, N.D.R.App.P.; (2) cause the record to be transmitted to the Supreme Court within 40 days as required by Rule 11, N.D.R.App.P.; (3) serve and file his brief within the 40 days allowed by Rule 31, N.D.R.App.P.; and (4) pay the docket fee required by Section 27-03-05, NDCC, and Rule 12, N.D.R.App.P. Olson did, thereafter, file the appeal bond but took no other action except that, at the hearing on the motion to dismiss, his counsel offered the explanation that, because of the lack of cooperation from his client, counsel would not advance the sum required to pay the docket fee. Under Rule 12(c), N.D.R. App.P., Olson thus was not permitted to respond to the motion for dismissal.

There is no significant difference between this case and Beckert v. Wallace, 219 N.W.2d 160 (N.D.1974), where we said at syllabus 2:

"Failure of client to cooperate with his attorney does not excuse failure to comply with Rules of Appellate Procedure fixing time for serving and filing brief, ordering transcript, and paying clerk's docket fee."

Except for the Hospital advising this court that it would not request costs against Olson, we would have allowed motion costs under Rule 39, N.D.R.App.P.

As authorized by Rule 3(a), N.D.R.App.P., the appeal is dismissed.

ERICKSTAD, C.J., and PAULSON, SAND and VOGEL, JJ., concur.