Dibble v. Hanson
| Decision Date | 13 November 1907 |
| Citation | 114 N.W. 371,17 N.D. 21 |
| Court | North Dakota Supreme Court |
Petition denied.
Since the foregoing opinion was rendered counsel for appellant have filed a petition for rehearing, in which they contend that the well-established rule that an order for judgment is non-appealable has no application in the case at bar, for the reason, as stated, that a judgment had previously been entered in plaintiff's favor, and hence the order appealed from is an order made after judgment and is appealable. Counsel's contention, no doubt, would be sound if their premise was correct; but, as we view it, the fallacy of their argument consists in the erroneous assumption that the judgment entered by the clerk without an order was and is a valid judgment. Such, however, is not the fact, but, on the contrary, the so-called judgment is a mere nullity; the clerk having no authority by law to enter the same without an order from the court or judge thereof.
Counsel evidently rely upon section 7001, Rev. Codes 1905, as conferring such authority, but this section must be construed together with section 7070, which reads as follows "Judgment upon an issue of law or fact, or upon confession, or upon failure to answer, may be entered by the clerk upon the order of the court or of the judge thereof." It is and always has been, so far as our information extends, the universal practice in civil actions in this state to enter judgments by default or otherwise only upon an order as provided in the last section. This practice so universal and so long established, is entitled to much weight in construing the provisions of the foregoing section but, aside from this consideration, we are convinced from the language employed in these sections, when construed together, that the construction thus adopted and followed by the bench and bar of the state is unquestionably sound. In a number of states authority is expressly conferred by statute upon clerks to enter certain default judgments. This is true in California, Minnesota and New York; but it is uniformly held that such authority does not exist except when explicitly granted by statute, and, where thus granted, the clerk in entering such judgments merely acts in a ministerial capacity, and is strictly limited in the exercise of such power to the cases mentioned in the statute. 6 Encyc. Pl. & Pr. 102, and cases cited While there is some...
To continue reading
Request your trial