(dissenting).
I disagree with the majority wherein they construe Rule 62(e) of the North Dakota Rules of Civil Procedure, as stated in Syllabus No. 4, to “eliminate the necessity of a cost bond on an appeal from a judgment to the Supreme Court by a municipal corporation when the enforcement of the judgment has been stayed.”
In this State, appeals from decisions of the district courts to the Supreme Court are subject to regulation by statute. North Dakota Constitution, Sections 86 and 109. The legislature has enacted such regulations. Chapter 28-27, N.D.R.Civ.P., and related statutes. Section 28-27-OS, N.D. C.C., provides that an appeal shall be deemed taken by the service of the notice of appeal, and perfected on the service of the undertaking for costs or the deposit of money instead, or by the waiver thereof. Section 28-27-09, N.D.C.C., provides that to render an appeal effectual for any purpose, the undertaking must be executed as provided, to the effect that the appellant will pay all costs and damages which may be awarded against him on the appeal, not exceeding $250.00. Section 28-27-10, N.D. C.C., provides that in lieu of an undertaking, a deposit of money may be made.
In King v. Menz, N.D., 75 N.W.2d 516 (1956), construing Section 28-2719, N.D. R.C.1943, we held that when a state officer takes an appeal from the district court in a purely official capacity, no undertaking for costs need be given. This statute has been quoted at length in the majority opinion. Section 28-2719, N.D.R.C.1943, however, was not carried into the North Dakota Century Code which became effective on January 9, 1961. Chapter 96 of the Session Laws of 1961. Section 1-02-19 of the North Dakota Century Code, also quoted at length in the majority opinion, provides that the omission from the Century Code of statutes theretofore in force constitutes a repeal of such omitted statutes. Higgins v. Hawks, N.D., 122 N.W.2d 129. Therefore, by the provisions of Section 1-02-19, supra, the omission of Section 28-2719, N.D.R.C.1943, from the North Dakota Century Code constituted a repeal of that section. I can find no other statute in the Century Code that exempts the public bodies and officers described in Section 28-2719, N.D.R.C.1943, from furnishing an undertaking for costs on appeal. With the above analysis I believe the majority agree.
The majority were unable to cite a statute to support their contention that public bodies and officers should, as a matter of policy, be exempt from filing cost bonds on appeal; therefore, they were compelled to give a strained construction to the Rules of Civil Procedure governing procedure in the district court to effect that end. This, in my opinion, was error.
The North Dakota Rules of Civil Procedure apply only to govern the procedure of the district courts in suits of a civil nature. Rule 1 states as follows:
These rules govern the procedure in the district courts in all suits of a civil nature whether cognizable as cases at law or in equity, * * *. (Emphasis supplied.)
The legislative'assembly has enacted certain enabling statutes empowering the Supreme Court of this State to make rules of pleading, practice and procedure which it may deem necessary for the administration of justice in all civil and criminal actions, remedies and proceedings, in any and all the courts of the State. Sections 27-02-08 *706through 27-02-15, N.D.C.C. They provide that all statutes relating to procedure in civil and criminal actions enacted by the legislative assembly shall have force and effect only as rules of the Court, and shall remain in effect unless and until amended or otherwise altered by rules promulgated by the Supreme Court. The statutes provide a detailed procedure which must be followed by the Supreme Court in the promulgation of practice rules. It was pursuant to these statutes that the North Dakota Rules of Civil Procedure were adopted by this Court and made effective July 1, 1957. Rule 62 (e) is one of the rules so promulgated. Rule 86(b), of the same Rules, provides:
Upon the taking effect of these rules all statutes and parts of statutes in conflict herewith and the statutes listed in Tables B and C are superseded in respect of practice and procedure in the district courts. (Emphasis supplied.)
Section 28-2719, N.D.R.C. 1943, is listed in Table C as a statute superseded. It was superseded, however, only insofar as it affected “practice and procedure in the district courts,”' as explicitly provided by the Rule. Therefore, it was not superseded in respect of practice and procedure in the Supreme Court. The statute was sever-able. It provided that when an appeal was taken by a public body or officer described therein, “service of the notice of appeal shall perfect the appeal and stay the execution or performance of the judgment or order appealed from and no undertaking need be given.” That part of the statute stating “service of the notice of appeal shall perfect the appeal” exempted the public body or officer from filing the undertaking for costs required by Section 28-2705, supra, and involved appellate practice. King v. Menz, supra. The part of the statute which stated it also shall “stay the execution or performance of the judgment or order appealed from” involved practice in the district court. We said, in Bonde v. Stern, 72 N.D. 476, 8 N.W.2d 457, that an appeal does not operate as a stay of execution or performance of the judgment or order appealed from, that stay of proceedings pending an appeal is an independent, collateral proceeding in the district court and the appellate proceeding proper remains wholly unaffected thereby. We held that the absence of a stay or defects rendering the stay order invalid does not affect the right of the appellant to a review of the judgment or the order appealed from in the Supreme Court. It is the trial court that is vested with authority to fix the amount of a stay bond and the conditions on which the stay must be had pending appeal to the Supreme Court. Therefore, when this Court adopted the North Dakota Rules of Civil Procedure, it was clearly the intent to limit Rule 62, providing for stay of proceedings to enforce the judgment, to practice and procedure in the district courts. The legislative assembly, on adoption of the North Dakota Century Code, repealed and abrogated the unsuperseded part of Section 28-2719, N.D.R.C. 1943, by omitting it from the Century Code. See Section 1-02-19, N.D.C.C., and Higgins v. Hawks, supra. Therefore, after the adoption of the North Dakota Century Code, there remained no exemption of public bodies and officers from complying with the requirements of Section 28-27-05, N.D.C.C., that an undertaking for costs be served to perfect an appeal.
Nor does Rule 60, N.D.R.Civ.P., lend support to the contention of the majority. Clerical mistakes in judgments, orders, or other parts of the record, refer to errors, mistakes, or omissions which are not a result of the exercise of the judicial function of the trial court. See Enderlin Farmers’ Store Co. v. Witliff, 56 N.D. 380, 217 N.W. 537, 538, wherein we quoted from Freeman on Judgments as follows:
“Clerical errors” as used in this connection ordinarily relate to the errors or omissions of the clerk in the entry of the judgment and are sometimes defined or treated as though this were the only class of cases to which the term might be properly applied. But “clerical” is employed in a broad sense as contra-dis*707tinguished. from “judicial” error and covers all errors, mistakes, or omissions which are not the result of the exercise of the judicial function.
It is also my opinion that the decision of the majority will create great confusion in this area. The majority hold that a municipal corporation need not file undertaking for costs when the appeal is taken from a judgment, the enforcement of which has been stayed. It therefore would appear that if the appeal is taken from a judgment, the enforcement of which has not been stayed, the exemption does not apply. Furthermore, Rulé 62(e), which the majority have construed, does not exempt a public body or officer from furnishing a bond if the appeal is from an order. It has been said that “hard cases make bad law,” and that “hard cases are the quicksands of the law.” However, I do not feel a strained decision is necessary to meet a case of hardship to the appellant. It is true the respondent moved that the appeal be dismissed because the appellant failed to serve or file an undertaking for costs. We have held the Supreme Court has neither the power nor the jurisdiction to hear and determine an appeal that has not been perfected by serving or filing an undertaking for costs when required. McClenahan v. Meek, 68 N.D. 255, 278 N.W. 469; Karabensh v. Grant, N.D., 73 N.W.2d 782. In the above cases we granted motions for dismissals because the appeal had not been made effectual by the furnishing of required undertaking or deposit. However, jurisdiction was vested in the Supreme Court by the giving and filing of notice of appeal within the time prescribed and, where the appeal has not been perfected by the filing of a sufficient undertaking for costs or by any undertaking, that jurisdiction is not terminated but the appeal may be dismissed by this Court upon a proper motion, and will be so dismissed unless the Court, under the power vested in it by Section 28-27-26, N.D.C.C., permits the filing of an undertaking, or an in-lieu deposit of money, upon a proper and sufficient showing and on such terms as may be deemed just. Section 28-27-26, N.D. C.C., provides:
When a party in good faith shall give notice of appeal and shall omit through mistake or accident to do any other act necessary to perfect the appeal, to make it effectual or to stay proceedings, the court from which the appeal is taken or the supreme court, or any one of the justices thereof, may permit an amendment or the proper act to be done on such terms as may be just.
This statute is remedial and is intended to favor the perfecting of appeals. Sucker State Drill Co. v. Brock, et al., 18 N.D. 8, 118 N.W. 348; McLean v. Underdal, 73 N.D. 74, 11 N.W.2d 102; In re Guardianship of Frank, N.D., 128 N.W.2d 355.
It therefore appears to me the defect could be remedied if the appellant, on a proper motion, can show good faith and good cause, and that if he cannot do so, the appeal should be dismissed.
Because it is my feeling that the appeal in this case has not been perfected, it is ineffectual for any purpose unless the defect is cured. For these reasons, I feel the appeal is not before us on the merits, and therefore I do not pass on the other issues.
STRUTZ, J., concurs.