Cox v. Selover

• Decision Date: 03 May 1929
• Docket Number: No. 27216.,27216.
• Citation: 225 N.W. 282,177 Minn. 369
• Parties: COX v. SELOVER et al.
• Court: Minnesota Supreme Court

225 N.W. 282

177 Minn. 369

COX v. SELOVER et al.

No. 27216.

Supreme Court of Minnesota.

May 3, 1929.

Appeal from District Court, Hennepin County; Gunnar H. Nordbye, Judge.

Suit by A. C. Cox against George H. Selover and another. From an order denying his motion to open the judgment for the purpose of fixing and inserting therein costs and disbursements, and for allowance and inclusion of attorney's fees, and also for substituting administrator in the place of defendant named, since deceased, plaintiff appeals. Affirmed.

E. E. Eder, of Minneapolis, for appellant.

J. A. Mansfield, of Minneapolis, for respondents.

OLSEN, C.

Appeal by plaintiff from an order denying his motion to open up a judgment for the purpose of permitting him to have fixed and inserted therein costs and disbursements in his favor, and for allowance and inclusion therein of a sum for attorney's fees incurred by him in the action; also for substituting as a party thereto, in place of George H. Selover, now deceased, the administrator of his estate.

Plaintiff brought suit on a promissory note. The litigation extended over a period of some three years. An appeal to this court is reported in 171 Minn. 216, 213 N. W. 902. Plaintiff recovered a verdict, which was here sustained. Mandate and remittitur from this court were filed in the district court on May 24, 1927. On the same day plaintiff caused judgment to be entered in that court upon the verdict for the sum of $5,652.31, without including therein any costs or disbursements. The place in the judgment for inserting the amount of costs and disbursements was left blank. On the same day defendants paid the judgment, and the plaintiff gave them a satisfaction thereof, which was filed, and satisfaction of judgment entered. The note upon which the action was brought provided for payment of reasonable attorney's fees in case of suit thereon. None were included in the verdict or judgment. After the entry and satisfaction of the judgment, plaintiff brought a separate action to recover the attorney's fees alleged to have been expended by him in the prior suit. He failed to recover.

The present motion was not made until one year and one month after the entry and satisfaction of the judgment. The trial court held that plaintiff's motion came under section 9283, G. S. 1923, permitting the court to reopen, amend, modify, or vacate a judgment at any time within one year after notice thereof, and that as the motion was made more than one year after entry of the judgment, it came too late. Notice to a party, who himself enters a judgment in his own favor, is, of course, not required. Plaintiff seeks to avoid the one-year limitation on the theory that the judgment was incomplete, because costs and disbursements had not been taxed and inserted therein. Our cases hold that, for the purpose of appeal by the judgment debtor, the judgment is not complete until costs and disbursements are taxed and inserted therein, where it appears that the judgment is incomplete in that respect, and...