Garr, Scott & Co. v. Spalding

• Decision Date: 18 February 1892
• Citation: 51 N.W. 867,2 N.D. 414
• Court: North Dakota Supreme Court
• Parties: Garr, Scott & Co. v. Spalding.

2 N.D. 414

51 N.W. 867

Garr, Scott & Co.

v.Spalding.

Supreme Court of North Dakota.

Feb. 18, 1892.

Syllabus by the Court.

1. The statute (section 5066, Comp. Laws) construed, and held to be mandatory, and not merely directory. It is the duty of the clerk of the district court, in cases tried by the court without a jury, to annex the decision of the trial court to the judgment roll; and where, in such case, no decision is found in the record transmitted to this court on appeal from a judgment, it will be presumed, in the absence of any explanation, that no decision was made or filed in the court below. A decision is a paper “which involves the merits, and necessarily affects the judgment;” and hence it forms a part of the statutory roll, under subdivision 2, § 5103, Comp. Laws, unless findings are waived in writing filed with the clerk, under section 5068.

2. Where the trial is before the court without a jury, it would be irregular, and reversible error, to enter judgment without first filing the decision of the trial court, in a case where non-waiver of findings appears affirmatively from the record. In such case the judgment would be illegally entered, and invalid on its face. But the mere absence of the waiver from the judgment roll does not show error affirmatively. Such waiver would not be a part of the statutory roll; and, in the absence of a bill or statement bringing the waiver upon the record, this court will presume, in support of the judgment, the contrary nowhere appearing of record, that a waiver of findings was made and filed in the court below.

3. Where the record does not affirmatively disclose the fact of non-waiver of findings, this court will presume, in support of a judgment, that findings were duly waived.

4. Where judgment is irregularly entered, good practice requires that it should be first assailed by motion in the district court. The order made on such motion is appealable, under subdivision 2, § 5236, Comp. Laws. But, where a judgment is absolutely void or illegal on its face, it will be reversed by direct appeal from the judgment; but even in such cases the better rule is to begin by motion.

Appeal from district court, Cass county; William B. McConnell, Judge.

Action by Garr, Scott & Co. against B. F. Spalding for the possession or value of certain personal property. Judgment for plaintiffs. Defendant appeals. Affirmed.Spalding & Phelps, for appellant. Francis & Southard, for respondents.

Wallin, J.

In this action, plaintiffs sue for the possession or value of certain personal property described in the complaint, and situated in the county of Cass, and claim a special property therein, by virtue of a certain chattel mortgage thereon executed in the state of Michigan. Defendant, by his answer, denies generally the allegations of the complaint, but admits that he is in possession of the property described in the complaint, and sets up ownership in himself, derived by a purchase of the property at a foreclosure sale of a certain other chattel mortgage executed and filed in said county of Cass, and a copy of which is made a part of the answer. The issues involved the question of the respective rights of the parties to the possession of the property in controversy, as such rights are affected and controlled by the two mortgages. On the 20th day of September, 1888, judgment was entered in the action by the district court as follows: “The above-entitled action coming on to be heard and determined this 20th day of September, being at the regular June, 1888, term of said court, a jury being waived, the court, hearing the evidence introduced, and after argument by Francis & Southard, attorneys for the plaintiff, and B. F. Spalding, attorney for the defendant, finds that the plaintiff is entitled to judgment as prayed for in its complaint; and now, upon motion of Francis & Southard, attorneys for the plaintiff, it is ordered and adjudged that plaintiff do have and recover judgment against said defendant for the return of the property described in said complaint, or the plaintiff's interest therein, which is assessed at the sum of $993.80, together with the costs and disbursements therein, taxed at $31.75.” Annexed to the judgment roll is the following certificate of the presiding judge of the district court in which the judgment is entered: “I, Wm. B. McConnell, judge of the district court of the third judicial district of the state of North Dakota, do hereby certify that the above and foregoing papers, to-wit, complaint, summons, answer, statement of costs and disbursements, and judgment, are contained in and constitute the judgment roll in the above-entitled action, and the whole thereof. Wm. B. McConnell, Judge.” The enumerated papers in said certificate, and none others, are found in the record filed in this court. No statement of the case or bill of exceptions was ever settled or allowed in the action. The appeal is from the judgment. The only error assigned by the appellant is as follows: “There is manifest error upon the face of the record, in that the district court erred in rendering or entering judgment without a decision in writing and findings of fact being made and filed or waived.”

The judgment recites on its face that a jury was waived, and that the court heard the evidence. In such cases the statute explicitly requires that the “decision must be given in writing, and filed with the clerk, * * * and no judgment shall be rendered or entered until after the filing of such decision.” “In giving the decision, the facts found and the conclusions must be separately stated.” Comp. Laws, §§ 5066, 5067. We are of the opinion that these statutory provisions are mandatory and not merely directory. That such is the legislative intent is emphasized by the amendment (section 1, c. 25, Sess. Laws 1887) declaring “no judgment shall be rendered or entered until after the filing of such decision.” Before the amendment, the supreme court of California, construing the language of the section as it was originally enacted as a part of the Code of that state, repeatedly held that the requirement was mandatory. Dowd v. Clarke, 51 Cal. 263. This court has also made a similar holding in Gull River Lumber Co. v. School-Dist., 48 N. W. Rep. 427, 1 N. D. 500. The question is therefore settled in this jurisdiction.

Counsel for appellant further argues that subdivision 2, § 5103, Comp. Laws, in effect, though not in terms, requires the clerk of the district court, in making up the judgment roll in cases tried by the court without a jury, to include the decision of the district court, embracing findings of fact and conclusions of law, in the judgment roll. This argument is based upon the following language in subdivision 2, supra: “All orders or papers in any way involving the merits, and necessarily affecting the judgment,” must be placed in the roll, etc. In this we entirely agree with appellant's counsel. The decision is required to be reduced to writing and filed, and must embrace findings of both law and fact. It is obvious, therefore, that the decision, which is, in effect, among other things, an “order” for judgment, is both an “order” and a “paper” involving the essential merits, and one which necessarily not only “affects” the judgment, but actually determines the judgment to be entered. It follows that it is the duty of the clerk of the district court to include the decision of the trial court in such cases as a part of the statutory judgment roll, in all cases where a decision has been filed, and to do so as a part of his official duty, not depending upon the request of counsel or the direction of the trial court. Nor should the decision be embraced in either a bill or statement in cases where either one or the other is allowed. The decision is an essential part of the statutory judgment roll, under subdivision 2. Thomas v. Tanner, 14 How. Pr. 426;Reich v. Mining Co., (Utah,) 2 Pac. Rep. 703. We further agree with counsel and hold that the fact that the decision of the trial court is not in the judgment roll, where it belongs, in the absence of any explanation of the omission, will justify this court...