Fettig v. Fettig

• Decision Date: 16 April 1970
• Docket Number: No. 8586,8586
• Parties: Nick FETTIG, Plaintiff and Respondent, v. Joe J. FETTIG, Anton J. Fettig, Jack Fettig, Monica Hovden and Raymond Fettig, Defendants and Appellants, and Margaret Mittelstadt, et al., Defendants and Respondents. Civ.
• Court: North Dakota Supreme Court

Page 523

176 N.W.2d 523

Nick FETTIG, Plaintiff and Respondent, v. Joe J. FETTIG, Anton J. Fettig, Jack Fettig, Monica Hovden and Raymond Fettig, Defendants and Appellants and Margaret Mittelstadt, et al., Defendants and Respondents.

Civ. No. 8586.

Supreme Court of North Dakota.

April 16, 1970.

Syllabus by the Court

1. In a partition action, under Chapter 32--16, N.D.C.C., an order confirming a sale of land and directing the referee to execute conveyances, as provided by Section 32--16--34, N.D.C.C., involves the merits of 'some part of the action,' is final and, therefore, is appealable under Section 28--27--02(5), N.D.C.C.

2. An appeal from a final order in a partition action is not triable de novo in the Supreme Court under Section 28--27--32, N.D.C.C., but such appeal is governed by Section 28--18--09, N.D.C.C., requiring that specifications of error be served with the notice of appeal.

3. The appellate court, in an appeal which requires that specifications of error be served, will consider only errors appearing on the judgment roll proper where no specifications of error were served as required by statute. The judgment roll is examined and no error is found.

Greenwood, Swanson, Murtha & Moench, Dickinson, for defendants and appellants.

Fleck, Smith, Mather, Strutz & Mayer, Bismarck, for plaintiff and respondent.

Mackoff, Kellogg, Kirby & Kloster, Dickinson, for Ambrose Stroh and Herbert Mittelstedt.

Marshall T. Bergerud, Killdeer, for D. B. Fitzlaugh, Grant Carlson and Willie Lind.

TEIGEN, Chief Justice.

This is an appeal from an order in a partition action confirming the sale of three and one-half sections of land, sold in parcels. Five of the twenty-two persons owning an interest, by inheritance, have taken this appeal. The appellants contend the court erred when it confirmed the sale because the referee in partition, acting as auctioneer at the sale, varied the court's terms of sale.

We are met, at the onset, with some practice questions.

Following the sale, the referee made his report of sale to the court. A hearing was held, on notice, and an order confirming the sale and directing the referee to execute conveyances was entered by the court. This order does not direct the entry of a judgment. However, a judgment was later entered by the clerk of court. This appeal is taken from the order confirming the sale and directing the referee to execute conveyances, and some of the respondents argue, on this appeal, that, because no appeal was taken from the judgment, the matter is now res judicata because the time to appeal from the judgment has expired. We do not agree. The order confirming the sale is a final order in a partition action and does not call for, nor require, the entry of a judgment. The statutes on partition provide that when a sale is ordered by the court, the referee, after completing the sale, must report the same to the court. Section 32--16--33, N.D.C.C. If the sale is confirmed by the court, an 'order' must be entered directing the referee to execute conveyances. Section 32--16--34, N.D.C.C. When the conveyances have been recorded, they act as a bar against all persons, subject to the jurisdiction of the court, to attack the sale. Section 32--16--36, N.D.C.C. Thus, the order confirming the sale is a final order. Rule 58, N.D.R.Civ.P., provides that a judgment may be entered by the clerk only upon the order of the court, or a judge thereof. The rule is a re-statement of the statute (Section 28--2001, N.D.R.C., 1943), which it superseded. The statute was construed in Dibble v. Hanson, 17 N.D. 21, 114 N.W. 371 (on rehearing), in which the court held that a judgment entered by the clerk, without an order, is a nullity. There is no order in this case directing the clerk to enter a judgment. Therefore, the instrument entitled 'Judgment' is void. In this case the complaint prays for a sale, the court ordered a sale, a sale was held, the referee made his report of sale and, after hearing, the court confirmed the sale and directed the referee to execute conveyances to the buyers. Thus the order involves the merits of 'some part of the action,' is final, and is appealable under Section 28--27--02(5), N.D.C.C.

The respondents also contend that, because the demand contained in the notice of appeal for a trial de novo is not contained in the settled statement of the case, trial de novo is not available to the appellants. This appeal, however, is from an order and not from a judgment, and Section 28--27--32, N.D.C.C., which allows a trial de novo in an appeal from a judgment in a case tried to the court without a jury, is not applicable. Collette v. Matejcek (N.D.1966), 146 N.W.2d 156.

The respondents contend that if the appeal is from an order there is nothing of the court to review because no specifications of error were served with the notice of appeal as required by Section 28--18--09, N.D.C.C. This section provides that a party desiring to appeal from a judgment, or other determination of a district court, except upon appeals triable de novo, shall serve, with the notice of appeal, a concise statement of the errors of law he complains of, and if he claims the evidence is insufficient to support the decision, or that it is of such character that the decision should be set aside as a matter of discretion, he shall so specify. In other words, upon an appeal, as in this case, specifications of claimed error must be served with the notice of appeal. Where an appeal is governed by the provisions of Section 28--18--09, N.D.C.C., the party taking the appeal has the burden of specifying and showing error and the review on appeal is limited to the errors specified. Where no error is assigned, there is nothing for the appellate courts to review. First Nat. Bank of Crary v. Bremseth, 60 N.D. 401, 234 N.W. 758; Pope v. Popow (N.D.), 133 N.W.2d 433. It has been held, however, that Section 28--18--09, N.D.C.C., was not intended to apply in cases where alleged error appears on the face of the judgment roll proper, but only to cases where a statement of the case is required in order to bring the rulings complained of up on the record. Collette v. Matejcek, Supra. We have examined the record and find that specifications of error were not served with the notice of...