(dissenting, with limited concurrence).
Except for dismissing the appeal, I am compelled to dissent from the rationale expressed in the opinion.
My first concern is with the implied application of Rule 43, North Dakota Rules of Appellate Procedure, to the facts of this case.
In my opinion, Rule 43, Substitution of Parties, of the Rules of Appellate Procedure becomes operational “after a notice of appeal is filed or while a proceeding is otherwise pending in the supreme court ... The term “after a notice of appeal is filed” obviously must mean a valid appeal which confers jurisdiction upon the appellate court. It cannot mean that merely the filing of a notice of appeal without regard whether or not the subject matter is appeal-able puts this rule into operation. As an example, assume a party is not pleased with the ruling of the court on evidence during trial and files a notice of appeal on the ruling. I don’t think anyone would seriously argue that such procedure would not put Rule 43 into operation.
Furthermore, the appeal is being dismissed for lack of jurisdiction on the ground that an order for judgment is not appealable. I agree with this. Under the setting of this case our Court technically is without jurisdiction to entertain or decree anything but a dismissal.
The majority opinion states:
*334“A Federal court, construing the corresponding Federal Rule, Rule 43, F.R. App.P., has also concluded that dismissal is not mandatory when there has been failure to substitute a party on appeal. Gamble v. Thomas, 655 F.2d 568, 569 (5th Cir. 1981). We therefore conclude that dismissal is not warranted in this case for failure to substitute parties.”
The majority opinion has either misread or misconstrued Gamble in support of its proposition that dismissal is not warranted for failure to substitute parties. In fact, the dismissal in Gamble was based upon the failure to substitute parties within a reasonable time. Mandatory dismissal was not involved. As such the Gamble case actually stands for and supports the proposition that failure to substitute parties within a reasonable time constitutes grounds for dismissal pursuant to the implications in Federal Rule 43(a), F.R.App.P. The North Dakota Rule 43, N.D.R.App.P., is substantially similar to the federal rule. The dismissal for failure to substitute parties is the equivalent of dismissing an appeal for failure to file briefs, etc., within a reasonable time after the notice of appeal has been filed. However, I would not have dismissed for failure to make substitutions because to do that requires the court to have jurisdiction, which our Court in this case did not have.
Substitution of parties, except where a public official is involved, is essential if not absolutely vital to the relationship of client and attorney, or principal and agent. The position of an attorney is that of an agent and if the principal dies the relationship of agency is terminated. It is imperative for the attorney to substitute parties in case of death with a personal representative, or some other proper party, to maintain the agency relationship. It is basic that without a principal an agent cannot exist.
While this case is dissimilar to State Bank of Burleigh County Trust Company v. City of Bismarck, 1982, 316 N.W.2d 85, nevertheless an attorney’s authority is extremely limited, if it exists at all, if the principal dies, until a substitution of parties is made.
The facts of this case are not difficult. Margaret Simpler died while the case was pending before the trial court. An attempted appeal was filed by Palmer Simpler on 26 March 1981 is factually more correct than the statement “Palmer Simpler appealed from the court’s order for judgment on 26 March 1981.” Palmer died 30 May 1981. From the record filed with this Court a strong probability exists that no judgment was ever entered and that only an order for judgment appears on the record with us. These facts bring the case squarely within Rule 25(a)(3) of the North Dakota Rules of Civil Procedure, which provides as follows:
“After a verdict is rendered or an order for judgment is made in any action, such action shall not abate by the death of any party, but the case shall proceed thereafter in the same manner as in cases where the cause of action survives by law, and substitution of parties shall be allowed as in other cases.” [Emphasis supplied.]
This Rule can be reconciled and harmonized with Rule 43, N.D.R.App.P., if a valid appeal has been taken, which, of course, is not the situation in the instant matter. The question, however, whether or not the 90-day limitation found in Rule 25(a)(1) within which the substitution must be accomplished is tolled because of what happened remains unanswered. This question is not ripe for our determination at this time. However, I do not agree with the majority that Rule 25(a)(3), N.D.R.Civ.P., has no application to this case. I think it does.