Thomas Joseph Burke

The case involved a dispute over whether the 1956 transfer of 1,272.54 shares of American Life and Casualty Insurance Company stock from plaintiff John Hook to defendants John P. Crary and V. W. Crary in exchange for $1,272.54 constituted a loan secured by the stock as collateral or an outright sale with an option to repurchase. Hook sued for conversion after the Crarys sold the rapidly appreciating stock in 1959 without offering it back to him, and a jury returned a verdict awarding Hook damages. The trial court denied the defendants' motions for judgment notwithstanding the verdict or a new trial, and the North Dakota Supreme Court affirmed the order, ruling that the evidence viewed in the light most favorable to the verdict supported a finding of a loan and that alleged trial errors caused no prejudice.

propertytorts & liabilityprocedure

This case involved a challenge to Chapter 319, Laws of 1965, a North Dakota statute regulating which entities could provide electric service in rural areas outside municipal limits. After McLean Electric Cooperative complained that Otter Tail Power Company's contract with the City of Coleharbor violated the law, the Public Service Commission issued a cease-and-desist order; the utilities then sued for a declaratory judgment that the statute was unconstitutional and obtained an ex parte temporary restraining order from a district judge halting enforcement pending further hearings. The relator asked the Supreme Court to exercise its original supervisory jurisdiction to set aside the restraining order, but the Court denied the petition. It reasoned that the order was not appealable until the district judge had an opportunity to reconsider it in an adversary proceeding, that any harm to the cooperative was only temporary monetary injury, and that the facts did not show the gross injustice or denial of justice required for extraordinary superintending control.

business & regulatoryprocedure

The case involved the First National Bank of Minot attempting to recover a $40,000 balance from MacDonald Construction Company based on an assignment of payments due to subcontractor A & A Contractors, Inc., a limited guaranty by MacDonald, and claims of estoppel arising from approved work estimates. Judgment had been entered against A & A by default, but after a bench trial the district court dismissed the claims against MacDonald, and the Bank appealed seeking a trial de novo. The Supreme Court affirmed, holding that the subcontract permitted MacDonald to charge the cost of completing the work against unpaid estimates in the event of A & A's default, that the guaranty was expressly limited to amounts MacDonald owed A & A (which was zero), and that estoppel did not apply because the Bank possessed a copy of the contract and was aware its provisions qualified the estimates.

business & regulatory

Skelly Oil Company filed a declaratory judgment action to determine conflicting claims to royalty payments under oil and gas leases on land in McKenzie County, North Dakota. The trial court ruled that the State of North Dakota owned an undivided half interest in the minerals and that Carrie Ceynar Oltesvig owned the other half subject to 1937 royalty assignments she and her former husband had made. On appeal, the North Dakota Supreme Court affirmed, holding that the foreclosure of the 1931 mortgage extinguished the prior royalty grants as to the State's interest but that the doctrine of estoppel by grant applied to the reacquired title: when William Ceynar purchased the land from the State in 1945 and Carrie later succeeded to his interest, that title inured to the benefit of the royalty grantees under the warranties in the 1937 assignments.

property

The case involved a defendant convicted of perjury in district court based on his testimony in a prior police magistrate trial for speeding, where he claimed he was stopped and served with a summons in a 35 mph zone rather than the 25 mph zone described by the officer. The court rejected arguments that the evidence was insufficient because the statements were not material, that witnesses only testified to the effect rather than substance of the prior testimony, or that witness memories were inadequate. It reversed the perjury conviction and granted a new trial, however, because the trial judge was absent during the jury's view of the scene, contrary to the mandatory requirement of N.D.C.C. § 29-21-26, and this error was deemed prejudicial.

criminal lawprocedure

This case involved an appeal by Tenneco Oil Co. from a district court judgment upholding the State Industrial Commission's denial of an exception to the established 80-acre spacing pattern in the Glenburn Oil Field. Tenneco sought permission to drill in a non-standard location on leased land after initially failing to secure an exception and later acquiring an adjacent unproductive lease to reconfigure the spacing unit. The Commission denied the request, finding the supporting evidence inconclusive and determining that the proposed well would not be necessary to avoid waste or protect correlative rights. The North Dakota Supreme Court affirmed, holding that the Commission's decision was supported by substantial evidence and that Tenneco's lease acquisition constituted an improper attempt to circumvent the spacing rules, as operators must contract with reference to existing regulations rather than create conditions necessitating exceptions.

business & regulatoryproperty

This case concerned a divorced father's motion to modify child support obligations incorporated in a 1960 divorce decree after he suffered a heart attack and became totally disabled from farming. The trial court granted the motion, relieving the father of further support payments except for $800 he owed one son, in light of social security benefits the children were receiving and the father's worsened financial condition. The North Dakota Supreme Court affirmed, holding that support provisions in a divorce judgment remain subject to modification upon a showing of changed circumstances, unlike property division terms, and that the evidence of disability, increased debt, and reduced net worth established a substantial change sufficient to justify the trial court's exercise of discretion without abuse.

family lawproperty

In Nord v. Koppang, the plaintiff served a summons but delayed filing the complaint beyond the 20-day period specified in Rule 4(b) of the North Dakota Rules of Civil Procedure, leading the defendant to treat the action as discontinued and decline to answer. When the plaintiff later moved for default judgment, the trial court issued orders allowing the plaintiff to proceed as if by default unless the defendant filed an answer within a set time, and later denied the defendant's motions to dismiss or vacate those orders while granting additional time to answer. The defendant appealed these interlocutory orders to the Supreme Court. The court dismissed the appeal, holding that the orders were not appealable under NDCC § 28-27-02 because they were purely procedural, did not determine the action or affect substantial rights in a final manner, and did not involve the merits of the case; such orders are reviewable only upon appeal from a final judgment.

procedure

The case concerned a dispute over a $20,000 promissory note secured by a real property mortgage arising from the dissolution of a ranching partnership; after the defendants offered to settle the debt for $15,000 cash and the plaintiff accepted via counsel, the mortgage was satisfied but the plaintiff later sued for a $5,000 balance, claiming an additional note was part of the agreement. The trial court entered judgment for the plaintiff, but the North Dakota Supreme Court reversed. The court held that state statutes governing actions on debts secured by real property mortgages (N.D.C.C. §§ 32-19-04, 32-19-06) require foreclosure proceedings and a jury determination of fair value before any deficiency recovery and prohibit direct actions on the debt without foreclosure; because the mortgage was satisfied without an agreement altering that requirement, the separate suit for the remaining amount was barred.

propertyprocedure

This case concerned a conditional sales contract for coin-operated laundry equipment purchased by the defendants, who alleged breach of an express warranty that a water softener would address local water conditions; after the equipment failed and the defendants rescinded, they ceased payments, leading the plaintiff (assignee of the contract) to repossess and sell the goods via claim and delivery proceedings. The defendants counterclaimed for damages, and the trial court entered judgment in their favor following denial of the plaintiff's motion for a new trial. The appellate court determined that an assignee of a conditional sales contract does not assume personal liability for the seller's breach of warranty or prior payments made by the buyer, but the defendants held a statutory lien securing repayment of their down payment when the seller refused return of the goods. Because the plaintiff's seizure and sale of the equipment converted that lien interest, the defendants were entitled to recover the down payment amount, rendering the original judgment excessive. The order denying a new trial was therefore reversed unless the defendants agreed to reduce the judgment to $1,504.20 plus interest.

business & regulatorypropertytorts & liability

The case involved a dispute over whether the City of Grand Forks was liable to pay a subcontractor for emergency repairs to damaged electrical switchgear at its municipal water plant following a fire in July 1959. The city argued it had no obligation because it had not formally accepted the original construction project and had not followed competitive bidding or other procedural requirements for authorizing the repair work. The court affirmed a judgment requiring the city to pay the reasonable value of the materials and services provided, holding that the city officials had authority to direct the repairs without bidding due to the emergency circumstances, that the city retained the benefit of the work, and that equity required payment for goods and services obtained and used within the city's general powers even if procedural formalities were not met.

business & regulatoryprocedure

This case arose after Linden School District annexed Byron School District and sought to remove the Porters from the school building while recovering damages for unauthorized occupancy and waste; the Porters counterclaimed for unpaid wages under their employment agreements as a teacher and janitor. The dispute centered on whether the teacher contract was properly terminated due to low attendance under state statute and whether the janitor's oral contract for the full school year had been ratified by the board despite procedural irregularities. On appeal with trial de novo, the court determined that the teacher's contract was validly ended in February 1960 when attendance fell below the required threshold, but the janitor's contract was binding for the entire school year, obligating the district to pay remaining wages plus utility costs. The judgment was reversed and remanded to award damages to Clifton Porter on his counterclaim.

labor & employmentproperty

The case involved the Fargo Park District suing the City of Fargo and Oak Grove Lutheran High School to declare void the city's proceedings to vacate a portion of a public street dividing the school's grounds, which would affect access to the district's park, and to enjoin related actions like barricading the street or creating a special assessment district. The district court dismissed the complaint as premature because the city's conditional resolution had not been published or had its conditions met. The Supreme Court reversed, ruling that the allegations of an existing controversy over threatened unauthorized acts stated a claim for declaratory judgment, as the resolution was not yet effective under the statutes requiring publication and compliance with conditions.

propertyprocedure

This case involved a widow's lawsuit to collect on a life insurance policy issued by the defendant company on her late husband. The insurer defended by asserting that the policy was obtained through material misrepresentations in the insured's medical examination answers regarding heart disease, chest pain, and high blood pressure; the trial court entered judgment for the plaintiff after a jury verdict. On appeal, the court reversed and directed entry of judgment for the defendant notwithstanding the verdict, holding that the undisputed evidence showed the insured's false statements concealed chronic hypertension and related symptoms that increased the risk of loss as a matter of law under North Dakota insurance statutes. The court further reasoned that partial disclosures to agents did not impute full knowledge to the insurer and that actuarial and industry evidence established the misrepresentations' materiality. The ruling directed dismissal of the claim but allowed return of premiums paid.

business & regulatory

This case involved a claim by a worker who suffered a severe back injury in 1948 while on the job, leading to multiple surgeries, intermittent employment, and periods of compensation from the North Dakota Workmen's Compensation Bureau; after the Bureau offered only partial permanent disability benefits and denied total disability, the claimant appealed. The district court reversed the Bureau's decision and awarded permanent total disability compensation along with back payments for prior unemployment periods and other adjustments. On appeal, the North Dakota Supreme Court affirmed the finding of permanent total disability, holding that the claimant was unable to procure and retain employment due to the injury when considering the nature of the work, the injury's extent, and the claimant's age, experience, training, and capabilities, as supported by medical evidence and testimony. The court reversed only the award of interest on unpaid amounts, while upholding other benefits such as those for dependents.

labor & employmentprocedure

This case involved a farm laborer who sued his employer for damages after being injured while operating a truck with a defective hydraulic hoist mechanism. The plaintiff alleged that the employer was negligent in providing defective equipment and demonstrating an unsafe method to operate the sticking valve control, leading to the grain box crushing his arm. After a jury verdict for the plaintiff, the trial court denied the defendant's motion for judgment notwithstanding the verdict, and the defendant appealed on grounds of insufficient evidence of negligence or proximate cause, plus assumption of risk and contributory negligence as a matter of law. The appellate court affirmed the judgment, holding that the evidence, viewed favorably to the plaintiff, supported findings that the employer failed to provide reasonably safe equipment and instructions, and that issues of assumption of risk and contributory negligence were properly left to the jury rather than decided as questions of law.

labor & employmenttorts & liability

In Johnson v. Fitzmaurice, plaintiffs sought to set aside a declaration of trust and conveyances of mineral interests on the ground that they suspended the absolute power of alienation longer than permitted by North Dakota statute. The trial court held the trust and conveyances null and void, following a prior decision in Carlson v. Tioga Holding Co., and the Supreme Court of North Dakota affirmed after a trial de novo. The court reasoned that the controlling statute (then section 47-02-27) bars suspension beyond lives in being or twenty-five years with only a narrow exception for certain contingent remainders, contains no carve-out for business trusts, and that adding one would constitute improper judicial legislation, so the earlier precedent was reaffirmed.

propertybusiness & regulatory

In Hagen v. Schluchter, plaintiff Verna Hagen sought to invalidate contracts for deed executed by her stepmother Elizabeth Steinbach selling real property to Elizabeth's daughter Florence Schluchter and her husband, claiming the sales violated mutual wills executed by Elizabeth and her late husband Adolph that directed equal division of the estate among their children and grandchildren after the survivor's death. The trial court found insufficient evidence of an enforceable agreement to preserve the jointly held estate and entered judgment dismissing the action. On appeal, the North Dakota Supreme Court affirmed, holding that the property's joint tenancy status meant the wills had no effect on title, that any oral agreement regarding the wills was subject to the statute of frauds, and that the mere execution of the reciprocal wills did not constitute sufficient part performance to remove the agreement from the statute's requirements. The court further noted that mutual wills are revocable by statute and their execution alone does not create a presumption of an irrevocable contract. The judgment was therefore affirmed.

family lawproperty

The case involved the conviction of defendant Dee Dee Govan in Ward County District Court for knowingly receiving proceeds from a woman engaged in prostitution, based on evidence that Aritha Robinson paid him a share of her earnings while staying at his home. Govan appealed, arguing errors in jury instructions and the admission of evidence obtained during a police raid. The North Dakota Supreme Court reversed the conviction and ordered a new trial, holding that the jury instructions failed to address Govan's defense that he received the money only as rent without knowledge of its source, and that the nighttime search of his home under a purported health order was an unlawful pretext that invalidated key evidence.

criminal lawprocedure

This case involved a challenge to the Secretary of State's approval of referendum petitions for North Dakota House Bill 771, which had been filed with over 7,800 signatures and certified as sufficient. Petitioners alleged extensive fraud, including forged signatures and those of deceased persons on over 2,700 signatures certified by one circulator, supported by affidavits and death certificates. The court held that the constitutional provision in Section 25 of the North Dakota Constitution bars effective judicial review of petition sufficiency once the ballot for the special election has been prepared and certified, as the election must proceed regardless. Because the review petition was filed after ballot preparation, the court dismissed it without addressing the fraud claims on the merits.

electionsprocedure