(dissenting).
I dissent.
I am of the opinion that jurisdiction was not transferred to this court and that this appeal should be dismissed.
The declaratory judgment action was instituted to settle a controversy between the insurer and its insured, the purpose being to determine the validity of a contract of insurance and obtain a declaration of the legal relations thereunder. The insured was represented by competent and able counsel. There is no claim of fraud, collusion, incompetency, dereliction of duty, delay, or disinterest on the part of counsel for the insured, nor is there any claim that counsel for the Unsatisfied Judgment Fund *765was more competent, or more able, or in any better position to defend the insured.
Shirley Lommen, the statutory beneficiary of William A. Lommen, who was killed in an automobile accident in which the defendant Nagle was involved, was also made a party to the action. She was also represented by able counsel, and it was her counsel who moved the trial court to permit the assistant attorney general, who is in charge of the Unsatisfied Judgment Fund, to participate in the trial ami-cus curiae. No claim is made on the part of counsel for either of the parties defendant, or the attorney for the Unsatisfied Judgment Fund who participated in the trial amicus curiae, that the case was not fully and ably presented to the trial court by the private attorneys. It is evident that the able attorneys for both defendants were of the opinion that the trial court did not err in its decision, and this judgment on their part has now been affirmed by the majority of this court by their decision affirming the trial court’s judgment.
This court, in Jones Lumber Co. v. Marmarth, 67 N.D. 309, 316, 272 N.W. 190, 194 (1937), after reviewing our statutes governing declaratory judgments, concluded:
“Thus, there must be an actual controversy between the parties, in respect to rights under this contract, submitted to the court for final determination as to the validity of the contract, * * * ”
The interest of the State does not qualify under this definition. The majority premise their decision on the fact that the State should have been made a party on the ground that “the State’s Unsatisfied Judgment Fund may be exposed to liability, * * * ” [Emphasis added.] The only possible basis for this statement is the fact that we have on our statute books an Unsatisfied Judgment Fund law. The record does not establish a probability that Nagle is liable for damages or that, if he is liable, the Fund will be required to pay; a possibility is all that is shown. From the decision of the majority it would appear that, hereafter, in any declaratory judgment action brought by an insurer against its insured involving an automobile liability policy, it must name the attorney general or the State’s Unsatisfied Judgment Fund, or both, as a party defendant. The attorney general has now become a public defender in all such suits because there is always the possibility that the State’s Unsatisfied Judgment Fund “may” become exposed if an automobile insurance policy is declared void.
The right to and regulation of appeals in this State are entirely statutory. North Dakota Constitution, Section 109; State ex rel. Hjelle v. Bakke, 117 N.W.2d 689 (N.D.1962); Helland v. Jones, 76 N.D. 511, 37 N.W.2d 513 (1949). An appeal is not a matter of right but a statutory privilege, and one who enjoys such privilege must show the law conferring it upon him. State ex rel. Hjelle v. Bakke, supra; Helland v. Jones, supra.
The majority rely, in part, on Section 54 — 12-01(1), N.D.C.C., which provides that the attorney general shall “[a]ppear for and represent the state before the supreme court in all cases in which the state is interested as a party." [Emphasis added.] In this case the State is not a party nor is it interested as a party. Its claimed interest is premised on the basis that it may become exposed to liability if certain unknown events occur in the future. No service of the summons and complaint was made upon the State or upon its Unsatisfied Judgment Fund; neither has the State intervened, been interpleaded or impleaded, nor been made a party to the action by an order of the court. Its only appearance was by its assistant attorney general ami-cus curiae. Further, this statute does not authorize the attorney general to take an appeal where the State is not interested as a party of record to the action. It merely imposes a duty upon the attorney general that, where the State is a party, he “[a]p-pear for and represent the state before the supreme court.” The State is not a party and the question before us is whether *766the case is “before the supreme court.” This statute clearly is applicable only where the case is in the supreme court and not in the trial court.
The statutes on appeal specifically provide how and by whom an appeal may be taken. Section 28-27-05, N.D.C.C., provides :
“How appeal taken. — An appeal must be taken by serving a notice in writing signed by the appellant or his attorney on the adverse party * * * ” [Emphasis added.]
This section has been construed to the effect that one who is not a party of record, nor a representative or privy to a party of record, has no right of appeal. Hart v. Bye, 86 N.W.2d 635 (N.D.1957); Guenther v. Funk, 67 N.D. 543, 274 N.W. 839, 112 A.L.R. 428 (1937).
The notice of appeal was not signed by Nagle or by his attorney. The assistant attorney general does not claim to be the private attorney for Nagle. Our statutes effectively prevent the attorney general or his assistants from engaging in the private practice of law by making them subject to disbarment if they do so. Section 27-14— 02, N.D.C.C. The statute providing for the appearance of the attorney general in matters involving the State’s Unsatisfied Judgment Fund is limited. In King v. Menz, 75 N.W.2d 516, 521 (N.D.1956), this court stated:
“The provision for the appearance of the attorney general is only for the protection of the fund. It is his duty to see that no liability is created against the fund except by due legal proceedings and that no judgment be obtained by fraud or collusion.”
There is no claim of fraud or collusion in the instant action. The only statute allowing the attorney general to appear on behalf of a defendant under a claim against the Unsatisfied Judgment Fund appears in Section 39-17-04, N.D.C.C., which provides that, where judgment is entered by default, claim shall not be made against the Fund unless the state highway commissioner and the attorney general have been given at least thirty days’ notice prior to the entry of such judgment, to which notice shall be attached a copy of the summons and complaint. The section provides :
“Upon receipt of such notice, the attorney general may enter an appearance, file a defense, appear by counsel at the trial or take s.uch other action as he may deem appropriate on behalf and in the name of the defendant, and may thereupon, on behalf and in the name of the defendant, conduct his defense, and all acts done in accordance therewith shall be deemed to be acts of the defendant.”
I have found no other statutory authority, and none has been pointed out, which permits the attorney general to appear on behalf of and as attorney for a defendant in a private automobile liability suit.
Furthermore, if the attorney general was a necessary party to the declaration of invalidity of the insurance contract, his rights were not prejudiced by the judgment. In quoting Section 32-23-11, N.D. C.C., the majority have omitted the important portion of that statute, which is italicized below and reads as follows:
“When declaratory relief is sought, all persons who have or claim any interest which would be affected by the declaration, shall be made parties, and no declaration shall prejudice the rights of persons not parties to the proceeding.” [Emphasis added.]
The majority do not hold that Nagle has appealed. I agree. He has not appealed. The majority hold that the State should have been made a party to the declaratory judgment action and that, although it was not named or served as a defending party, the State has an interest and participated in the trial “and thus the State was a party to the action for purposes of permitting it to appeal.” The majority premise their de-*767cisión on a series of assumptions which are: (1) that Nagle will be sued; (2) that a judgment will be obtained against him; (3) that he will be unable to pay the judgment ; and (4) that the State will be asked to pay.
As I have pointed out above, there is no basis in this record for making these assumptions. Similar assumptions could be made in almost any action by an insurer seeking a declaration that an automobile liability insurance policy is invalid. I do not agree that there has been a showing that the State is interested to the extent that it should have been made a party to the declaratory judgment action. Further, it took no steps to interplead nor in any other manner did it become a party. It merely participated in the trial amicus curiae.
“An amicus curiae is not a party and cannot assume the functions Ipf a party, an attorney for a party, or even a partisan.” 4 Am.Jur.2d Amicus Curiae, Section 3, at 111. See also, Baird v. Williston, 58 N.D. 478, 226 N.W. 608.
For the reasons set forth, I believe the appeal should be dismissed.
KNUDSON, J., joins in the dissent of TEIGEN, J.