Field v. Great W. Elevator Co.

• Decision Date: 21 April 1896
• Citation: 5 N.D. 400,67 N.W. 147
• Parties: FIELD et al. v. GREAT WESTERN ELEVATOR CO.
• Court: North Dakota Supreme Court

5 N.D. 400

67 N.W. 147

FIELD et al.

v.GREAT WESTERN ELEVATOR CO.

Supreme Court of North Dakota.

April 21, 1896.

Syllabus by the Court.

1. An order of the district court, entered in its minutes by the clerk of that court, directing the dismissal of an appeal taken to the district court from a judgment entered in a county court, does not itself accomplish the dismissal of the appeal. Until a judgment is entered in the district court upon such order, the action will be pending in the district court; and, while the action is pending in the district court an appeal will not lie to this court from the county court, in which the judgment was originally entered.

2. This rule is the same whether the order of dismissal made by the district court is made upon the appellant's motion or upon the motion of his adversary.

Appeal from Ransom county court; Frank P. Allen, Judge.

Action by William H. Field and Clarence B. Wisner against the Great Western Elevator Company. From a judgment for defendant, plaintiffs appeal. On motion to dismiss. Granted without prejudice.Edward Engerud, for appellants. P. H. Rourke, for respondent.

WALLIN, C. J.

This action originated in the county court for Ransom county, and that court entered a judgment in favor of the defendant, whereupon the plaintiffs perfected an appeal in said action to the district court for Ransom county, said appeal being taken upon questions of law alone, under the provisions of section 6591, Rev. Code. No statement of the case was made or settled in the county court prior to said appeal to the district court or at any time. In the district court the defendant moved to dismiss the appeal upon the ground that no statement had been filed in the action. This motion was denied. The plaintiffs in the action then moved to dismiss the appeal, which motion was granted, and the district judge entered in the judge's minutes the following memorandum: “Nov. 30th, 1895, on motion of plaintiffs' attorney, the appeal herein is dismissed.” Subsequently the clerk of the district court made the following entry in his minutes: “Nov. 30th, 1895, on motion of plaintiffs' and appellants' attorney, the appeal was ordered dismissed, and the papers in the case ordered returned to the county court.” No judgment of dismissal or for the costs of the action was ever entered by the district court, and no other entries in the action than those above stated were made in the records of the district court. Thereafter the plaintiffs, pursuant to said section 6591, made, served, and filed a notice of appeal and undertaking on appeal in said action in manner and form as required by the statute regulating appeals to this court from the district...