Investors Title Insurance Co. v. Herzig
Insurance Company, Plaintiff
v.
David F. Herzig,
Southeastern Shelter
Corporation, Alphild Herzig, Defendants
-----
On Appeal
Southeastern Shelter
Corporation, Plaintiff, Appellee
and Cross-Appellant
v.
Sheldon Smith, Personal
Representative of the Estate
of Alphild Herzig,
substituted for Alphild
Herzig, Deceased, Defendant, Appellant
and Cross-Appellee
Judge David W. Nelson
| Appellant: | Arnold V. Fleck | |
| Appellee: | Robert S. Rau |
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1. Whether this Court should exercise its supervisory jurisdiction to reverse the July 2, 2004, Order on Rule 19(a) Joinder of Party in the 1998 action, dismiss Alphild Herzig as a party defendant in the 1998 action, invalidate all orders in the 1998 action which were entered against Ms. Herzig and her Personal Representative (PR) after entry of the joinder order, and dismiss the 2008 action on the grounds the claims for relief raised in that action are without legal basis?
2. Whether the district court erred by failing to dismiss Alphild Herzig as a defendant in the 1998 action and dismiss the 2008 action against Ms. Herzig on the grounds the contempt proceedings against Ms. Herzig in the 1998 action abated or were extinguished by the death of Ms. Herzig?
3. Whether the district court lacked subject matter jurisdiction in the 1998 action to join Ms. Herzig as a defendant in the action, which renders the contempt proceedings against Ms. Herzig in that action void and renders the claims for relief sought in the 2008 action without legal basis?
4. Whether the district court erred by failing to dismiss the 2008 action on the grounds Southeastern failed to state a claim upon which relief can be granted, because there was no actual controversy before the court, as Southeastern's claim is not ripe for adjudication in an action separate and apart from the 1998 action, because no final judgment/order has yet been entered in the 1998 action, which adjudicates all of the claims, rights and liabilities of the parties in that action?
5. Whether the orders substituting the PR as a defendant for Ms. Herzig in both the 1998 and 2008 actions are appealable orders?
6. If this Court should overrule the holding in Missouri Slope Livestock Auction, Inc. v. Wachter, 113 N.W.2d 222 (N.D. 1962), that an order reviving an action, under Rule 25(a)(1), N.D.R.Civ.P., after the death of a party, is immediately appealable, should the decision only be applied prospectively?
7. If this Court decides to remand either or both of these actions, without instructions to dismiss the claims brought against Mr. Herzig and the PR in the action, should the remand include instructions to the district court to provide the PR additional and reasonable time for filing an amended answer in the action and any motions the PR may deem appropriate in his defense of Southeastern's claims?
Appellee's Statement of the Issues:
1.Is this case appealable at this time.
2.Should the Appeal of the Estate be dismissed as this court is unable to make a proper and adequate review of the lower court's decision, because a complete transcript of all proceedings dealing with the order to produce, contempt sanctions, reconsideration requests were not secured.
3.Does the cause of action continue and when the law does not authorize its abatement on account of the death of Alphild Herzig.
4.Does the Court have jurisdiction over Ms. Herzig.
5.Is there a proper case or controversy before the Court and when the time to appeal expired years ago
6.Are the Contempt Sanctions proper in this case.
7.Should Sheldon Smith be denied appointed as successor for the late Ms Herzig and on account of conflict among other reasons.
8.Should the Court exercise its supervisory powers in this matter, when the application is procedurally defective and no adequate showing has been made of its necessity and when the lower courts order against Alphild was jurisdictionally based on contempt proceedings. Should the Court dismiss other assertions raised by the Estate as they were not raised in the court below.
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