Crane v. First National Bank of Mchenry
| Decision Date | 24 October 1913 |
| Citation | 144 N.W. 96,26 N.D. 268 |
| Court | North Dakota Supreme Court |
Rehearing denied November 21, 1913.
An appeal from an order of the District Court for Foster County Coffey, J., vacating a judgment and granting retrial.
Affirmed.
Order affirmed, respondent recovered costs on appeal.
Pollock & Pollock, for appellant.
There is no provision of statute in this state requiring the judge himself to file his decisions. Comp. Laws 1893, § 5066 as amended; Roblin v. Palmer, 9 S.D. 36, 67 N.W 949.
The provision requiring the findings to be filed within thirty days is directory. Edmonds v. Riley, 15 S.D. 470, 90 N.W. 139.
The judgment in this case is not void because of failure of the judge to file findings, conclusions, and order for judgment, before the expiration of his term. When they were presented to the clerk of court, plaintiff was entitled to have his judgment entered. Code, § 7070; 23 Cyc. 839-c; Babcock v. Wolf, 70 Iowa 676, 28 N.W. 490; Shenandoah Nat. Bank v. Read, 86 Iowa 136, 53 N.W. 96; Carli v. Rhener, 27 Minn. 292, 7 N.W. 139.
The action of the clerk of court is purely ministerial, and not essential to the validity of the judgment. 1 Black, Judgm. 1891 ed. § 110; Cameron v. Great Northern R. Co. 8 N.D. 124, 77 N.W. 1017, 5 Am. Neg. Rep. 454; Mace v. O'Reilley, 70 Cal. 231, 11 P. 721; Connolly v. Ashworth, 98 Cal. 205, 33 P. 60.
It is the duty of a party knowing that a judgment has been entered against him to exercise reasonable diligence to have it set aside. Relief will not be granted where he has knowingly acquiesced in the judgment, or been guilty of laches or unreasonable delay in seeking his remedy. Kemp v. Cook, 18 Md. 130, 79 Am. Dec. 681; Seibert v. Minneapolis & St. L. R. Co. 58 Minn. 72, 59 N.W. 828; 23 Cyc. 909-4.
If the proceedings under which the judgment was entered were irregular, such irregularity should be disregarded. Braithwaite v. Aikin, 1 N.D. 455, 48 N.W. 354; Green v. Hughitt School Twp. 5 S.D. 452, 59 N.W. 225; Hulst v. Benevolent Hall Asso. 9 S.D. 144, 68 N.W. 200; Wyman v. Werner, 14 S.D. 300, 85 N.W. 584; Ward v. Gradin, 15 N.D. 649, 109 N.W. 57; Dring v. St. Lawrence Twp. 23 S.D. 624, 122 N.W. 664.
Watson & Young, for respondents.
Findings, conclusions, and order for judgment signed by the judge do not become a valid judgment, unless filed and entered in the judgment book by the clerk of court, during the term of the judge who signed the same. Code Civ. Proc. 1905, §§ 7038-7045; Dowd v. Clarke, 51 Cal. 263; Garr, S. & Co. v. Spaulding, 2 N.D. 416, 51 N.W. 867.
A final judgment does not become such, until entered by the clerk in the judgment book. Re Weber, 4 N.D. 119, 28 L.R.A. 621, 59 N.W. 523; Brown v. Hathaway, 10 Minn. 303, Gil. 238; Washburn v. Sharpe, 15 Minn. 63, Gil. 43; Williams v. McGrade, 13 Minn. 46, Gil. 39; Hodgins v. Heaney, 15 Minn. 185, Gil. 142; Thompson v. Bickford, 10 Minn. 17, Gil. 1; Hunter v. Cleveland Co-op. Stove Co. 31 Minn. 505, 18 N.W. 645; Bowman v. Tallman, 28 How. Pr. 482; Knapp v. Roche, 82 N.Y. 366; Dibble v. Hanson, 17 N.D. 21, 114 N.W. 371, 16 Ann. Cas. 1210.
The judgment is void because of failure to file during term of office of the judge. Ludlow v. Johnson, 3 Ohio 553, 17 Am. Dec. 609; Broder v. Conklin, 98 Cal. 360, 33 P. 211; Condee v. Barton, 62 Cal. 1; Pitman v. Thornton, 65 Me. 95; 11 Enc. Pl. & Pr. 828; Newbould v. Stewart, 15 Mich. 155; Cain v. Libby, 32 Minn. 491, 21 N.W. 739; Brady v. Burkee, 90 Cal. 1, 27 P. 52.
A court cannot correct an error after jurisdiction over the matter has passed from it. Ludlow v. Johnson, 3 Ohio 553, 17 Am. Dec. 609.
Findings in themselves are not the judgment of the court. 18 Enc. Pl. & Pr. 450; Andrews v. Welch, 47 Wis. 134, 2 N.E. 98; Seibert v. Minneapolis & St. L. R. Co. 58 Minn. 72, 58 N.W. 828.
A judgment is of no effect until filed with the clerk, and is of no effect if filed after the expiration of the judge's term. Broder v. Conklin, 98 Cal. 360, 33 P. 211; Hastings v. Hastings, 31 Cal. 95; Connolly v. Ashworth, 98 Cal. 205, 33 P. 60; 23 Enc. Pl. & Pr. 839.
Where judgments are void for want of jurisdiction, the statutory time limit of one year is no bar to the remedy. Freeman v. Wood, 11 N.D. 1, 88 N.W. 721, 14 N.D. 95, 103 N.W. 392; Skjelbred v. Schafer, 15 N.D. 539, 125 Am. St. Rep. 614, 108 N.W. 487; Williams v. Fairmount School Dist. 21 N.D. 198, 129 N.W. 1027; 1 Black, Judgm. § 307, pp. 383-388; Feikert v. Wilson, 38 Minn. 341, 37 N.W. 585.
GOSS, J. BURKE, J., not participating. BRUCE, J., dissenting.
This is an action in equity tried in the district court of Foster county before the Honorable E. T. Burke, presiding judge. Findings, conclusions, and order for judgment were signed by said district judge on December 29, 1910, during his term of office, and forthwith transmitted to the attorneys for plaintiff and appellant for filing and preparation of judgment to be entered, and who caused the same to be filed with the clerk of the district court of Foster county on January 24, 1911, some two weeks after said former district judge had qualified as and assumed the duties of justice of this court. On January 25, 1911, the clerk entered judgment in the name of the former district judge pursuant to the findings, conclusions, and order for judgment as filed on January 24th, Judge Coffey, meanwhile, having qualified as judge of said district on January 7th. An appeal from said judgment was taken to this court and supersedeas bond filed. Pending the appeal a motion for vacation of the judgment was noticed but abandoned, but later another motion to vacate was heard September 1, 1911, and denied because of the pendency of the appeal. On November 14, 1911, said appellant procured its dismissal without prejudice to an appeal upon the merits. Subsequently, and on March 29, 1912, the defendant again moved to vacate the judgment from which the appeal had formerly been pending, which motion was granted and plaintiff appeals.
The findings, conclusions, and order for judgment were signed, and had they been filed before the expiration of the term of office of the trial judge no question as to their validity could have arisen. Does the omission to file them before the expiration of the term of office of the judge authorized to find the same invalidate the unfiled but executed findings, conclusions, and order is the first question for decision.
Secs. 7039 and 7040, Rev. Codes 1905, make the findings, conclusions, and order for judgment thereon the decision of the court. That findings and conclusions are necessary, and that the statutes requiring them are mandatory, see Gull River Lumber Co. v. School Dist. 1 N.D. 500, 48 N.W. 427; Garr, S. & Co. v. Spaulding, 2 N.D. 414, 51 N.W. 867; Prondzinski v. Garbutt, 9 N.D. 239, 83 N.W. 23; and a late decision in South Dakota to the same effect in Kierbow v. Young, 21 S.D. 180, 110 N.W. 116.
But appellant contends that though findings, conclusions, and order for judgment are necessary, yet the statute does not require that the same necessarily be filed in order to be valid; and that the statute requiring the filing within sixty days after the cause has been submitted for decision is a directory provision, aimed more particularly at the expediting of court business in compelling judges to do their duty, and should not be interpreted so as to invalidate findings and conclusions properly found but filed as here after the termination of the office of the particular judge.
Time periods within which acts are required to be done are usually, in the absence of plain statutory commands to the contrary, construed as directory, and such undoubtedly is the construction to be given the time limit within which our statute requires a decision to be made. 8 Enc. Pl. & Pr. 949; Hayne, New Trials & App. § 246 and cases there cited. But the requirement of §§ 7039 and 7040, as to filing, concerns the manner of the pronouncing of the final decision of the court. Every judgment embodies two essentials: (1) The rendition of the judgment, and (2) the entry thereof after rendition. The first is the judicial act of the judge, the latter the clerical act of a ministerial officer, the clerk. Sec. 7040 explicitly provides that The statute here has reference to these separate acts of rendition and entry of judgment, as does § 7039, more particularly under investigation, reading: "And upon the trial of any question or issue of fact by the court, its decision thereon and conclusions of law upon such decision, and direction for entry of judgment in accordance with such conclusions, must be given in writing and filed with the clerk within sixty days after the cause has been submitted for decision, unless such decision is prevented for the reason hereinbefore stated, and judgment shall be entered by the clerk in accordance with such direction upon the application of the party entitled thereto and the filing of such decision and conclusions of law." The decision must be in writing and filed with the clerk in advance of and as a basis for the clerical duty of entering judgment. The filing is made by statute a necessary step or requisite in the decision, as much so as it is that it shall be in writing and shall consist of findings and conclusions. We are dealing with necessities for a valid judgment of record. The statute contemplates that the judgment entered shall rest upon a record basis, to secure which under the statute findings and conclusions must be filed. Until so filed no final decision has been made. In the language of Comstock Quicksilver Min. Co. v....
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