Bode v. New England Inv. Co.

• Decision Date: 01 April 1890
• Citation: 45 N.W. 197,1 N.D. 121
• Parties: Bode v. New England Investment Co. et al.
• Court: North Dakota Supreme Court

1 N.D. 121

45 N.W. 197

Bode

v.New England Investment Co. et al.

Supreme Court of North Dakota.

April 1, 1890.

Syllabus by the Court.

1. In a former action a demurrer was interposed to the answer, and upon argument thereon the district court made the following order: “It is ordered that said demurrer be, and the same is hereby, overruled. It is further ordered that said demurrer be, and the same is hereby, sustained to the plaintiff's complaint, and that said action be, and the same is hereby, dismissed, with costs to be taxed, unless the plaintiff amends his complaint within twenty days from the date hereof.” Held, that such order was not a final judgment in prœsenti, but, on the contrary, was an order that judgment might be entered in futuro upon a specified contingency. Held, further, that such an order could not be converted into a final judgment by the mere voluntary act of the clerk of the district court, who copied it into the judgment docket without being directed so to do by the court and without any proof being made that the specified contingency upon which judgment could be entered had occurred.

2. In the former action, which is pleaded in bar to this action, the plaintiff sued the county of Ramsey and the city of Devil's Lake in equity, and asked that the county be enjoined from selling plaintiff's lands for the tax of 1885 thereon, and that such tax be annulled and canceled of record. Held that, if final judgment had been regularly entered in such former action for the relief demanded therein, such judgment would not have been effectual to prevent the sale of the lands for taxes, for the reason that the duty of selling lands for delinquent taxes, under the law, devolves upon the county treasurer alone, and the county, as such, has no power to make such sale. Held, further, that such judgment would have been ineffectual to compel the cancellation of the tax proceedings of 1885, for the reason that the records containing such proceedings were not within the possession of either of the defendants in the former action, but were in the official custody of certain county and city officers, who were not before the court in the former action. Held, further, that no final judgment which could be entered in the former action would operate as a bar to this action, for the reason that the parties defendant were wholly different in the two actions, and were not in privity with each other.

3. The decision of the case of Farrington v. These Defendants, ante, 191, (decided by this court,) will govern in this case; and, following the rule established in the Farrington Case, the judgment of the district court is reversed.

On rehearing. For former opinion, see 42 N. W. Rep. 658.

J. F. McGee and D. E. Morgan, for appellants. W. E. Dodge, for respondent.

WALLIN, J.

This is an action for equitable relief, in which the plaintiff asks to have certain taxes levied upon plaintiff's land by the county of Ramsey and city of Devil's Lake, in 1885, set aside as void, and the record thereof canceled and annulled, and also that the tax certificates describing said lands, issued by the county treasurer, at the tax-sale of 1886, to the defendant the New England Investment Company, be canceled and set aside as void. The grounds of relief as set forth in the complaint are, in substance, as follows: First, that the plaintiff's lands are exempt from all direct taxation under the provisions of chapter 99, Laws 1883, commonly known as the “Gross Earnings Law;” second, that, if said lands were taxable as other lands are taxed, the proceedings of the taxing officers in attempting to assess and levy the tax of 1885 were illegal and void, and consequently that the county treasurer was without jurisdiction to sell the lands at said tax-sale. The defendants answered, denying that there were any errors or irregularities in said proceedings which would render them void. As a separate defense to this action the defendants pleaded a former recovery, in the language following. “That on the 31st day of August, 1886, the above-named plaintiff brought an action in the above-entitled court against the county of Ramsey and the city of Devil's Lake, in the territory of Dakota, on the same cause of action set forth in the complaint herein; and in said action such proceedings were had that on the 4th day of September, 1886, said county of Ramsey and city of Devil's Lake recovered judgment against the above-named plaintiff on said cause of action, and upon the merits thereof, dismissing said action, and awarding said county of Ramsey and city of Devil's Lake their costs and disbursements in said action, which said judgment is in full force and effect, and unappealed from, and which judgment was duly filed and entered in the office of the clerk of the above-entitled court on the 27th day of October, 1886.”

The testimony admitted upon the trial of this action shows that the plaintiff, prior to the commencement of this action, instituted the action pleaded in bar for the purpose of setting aside and canceling the said tax levies of 1885, and to enjoin the county of Ramsey from selling plaintiff's said lands at the tax-sale of 1886. In the former action, plaintiff alleged as a sole ground for relief that the lands in question were exempt from taxation for the same reasons which are set out in the complaint in this action. In the former action the defendants answered to the complaint, and plaintiff demurred to the answer for insufficiency. Argument upon the issues presented by the demurrer was had; and the trial court determined said issues, and made its order thereon as follows: “It is ordered that said demurrer be, and the same is hereby, overruled. It is further ordered that the said demurrer be, and the same is hereby, sustained to the plaintiff's complaint in said action, and that said action be, and the same is hereby, dismissed, with costs to be taxed, unless the plaintiff amends his complaint within twenty days from the date hereof.” It was admitted upon the trial of this case that the complaint in the former action was not amended. It was claimed in the court below that the order upon the demurrer aforesaid was a final judgment upon the merits, and constituted a bar to the present action. The court below held that it was not a final judgment, and the ruling is assigned as error in this court. We hold that said order was not a final judgment, and was not intended to be final by the district court, and, further, that, if it had been a final judgment, the same would not be a bar to the present action. Our reasons are as follows:

The trial court, among other findings of fact, found that “the order pleaded in defendants' answer was never succeeded by a final judgment in said action based thereon.” So far as it is a matter of fact, the evidence justifies this finding of the district court. It appears that the order (so-called “judgment”) was filed with the clerk of the court more than 20 days subsequent to its date, and on October 27, 1886. The clerk of the district court testified with respect to the order as follows: “It is the original of the page I have read from the judgment docket.” It nowhere appears from the testimony, and was not claimed upon the argument in this court, that the clerk of the district court ever at any time was directed by the district court, or by the attorneys in the former action, to transcribe the order in question into the judgment docket or other record book in his office. So far as appears from the testimony, the act of copying the order into the judgment docket was purely a voluntary act on the part of the clerk of the district court, and was therefore unauthorized, unless it was the duty of the clerk, under the law, to record such an order at length in the docket. We think it was not his duty to do so. It does not appear that the order was ever entered in the judgment book, which is the record in which judgments are required by statute to be entered. Comp. Laws, §§ 5101, 5102. The statute requires that...