Dusing v. Nelson

• Decision Date: 08 February 1884
• Citation: 2 P. 922,7 Colo. 184
• Court: Colorado Supreme Court
• Parties: DUSING v. NELSON.

2 P. 922

7 Colo. 184

DUSING v. NELSON.

Supreme Court of Colorado

February 8, 1884

Where an order entered is a final judgment in an action the court has no power to set it aside and redetermine the issues after the lapse of two terms of court.

Where it is necessary to save the estate from loss the executor or administrator has the right to purchase or take possession of land on the foreclosure of a mortgage belonging to the estate, and hold the title for the benefit of the estate.

A final judgment should show in intelligible language a determination of the rights of the parties to the action, what relief has been granted, or that the defendant has been dismissed without day. A mere judgment for costs in favor of the defendant is not a final judgment.

Where in ejectment, the legal title to land is in the plaintiff and the equitable defense fails, there being no application for affirmative relief, judgment should be given for the plaintiff.

Error to county court of Jefferson county.

Brown & Putnam, for plaintiff in error.

A H. De France, for defendant in error.

BECK C.J.

This was an action of ejectment brought by Nelson, the defendant in error, against Dusing, the plaintiff in error, to the March term, 1880, of the court below, to recover possession of a quarter section of land. The last entry of record in said cause at the March term is in the following words 'And now, after the demurrer being overruled to defendant's additional answer, comes the said plaintiff and files his replication to said answer, whereupon the said defendant asks for judgment on said replication and the papers in this cause. And now, the court being fully advised in the premises, finds that there is not sufficient matter alleged in said replication on which to found an action. Thereupon it is considered, ordered, and adjudged by the court that the said defendant have and recover of and from the said plaintiff, his costs and disbursements by him, in this behalf laid out and expended, taxed at seven and 5-100 dollars, and that he have execution therefor.'

No further steps were taken in said cause until the December term, 1880, of said court, when the plaintiff moved the court to vacate the judgment for costs entered at the March term, and for a rehearing of the defendant's motion for judgments upon the pleadings. This motion was resisted by the defendant's counsel, but the court sustained the motion, vacated the judgment for costs, and granted a rehearing of the application for judgment upon the pleadings, to which rulings of the court the defendant duly excepted. Afterwards, on the rehearing, the motion for judgment on the pleadings was overruled, and the cause set down for trial before the court without a jury, by consent of parties. The finding and judgment were for the plaintiff.

The first error assigned questions the power of the court to vacate the judgment entered at the March term. Two terms of court had intervened after the entry of the so-called judgment before the coming of the December term, at which the subsequent proceedings were had. If, therefore, the order entered at the March term was, in fact, a final judgment in the cause, the court had no power to set it aside, and to rehear and redetermine the issues after the lapse of two terms of court. Freem. Judg. §§ 90, 96. The court below appears to have taken the view that the action taken at the March term did not constitute a final judgment, and was not a final disposition of the case. We are of opinion this view is correct. Pothier says: 'A judgment, to have the authority, or even the name, of res judicata, must be a definite judgment, of condemnation or dismissal.' Poth, Ob. pt. 4, c. 3, § 3. If the order entered in a cause does not put an end to the action, but leaves something further to be done before the rights of the parties are determined, it is interlocutory, and not final. To be final it must end the particular suit in which it is entered.

It is said that a judgment, 'that the defendant go hence, and that he recover his costs, etc.,' though not formal, is a good final judgment, because no further action can be taken while it remains in force, but that a judgment for costs alone is not final. Freem. Judgm. 12, 16. See, also Young v. Stonebreaker, 33 Mo. 117; Adams v. Trigg, 35 Mo. 190. As we said in Alvord v. McGaughey, 5 Colo. 244: 'While a strict compliance with forms is not essential in the entry of judgment, yet to constitute a final judgment the record must not only indicate that an adjudication took...