Gerish v. Johnson

• Decision Date: 01 January 1860
• Citation: 5 Minn. 10
• Parties: HENRY G. GERISH et al. vs. JOHN JOHNSON.
• Court: Minnesota Supreme Court

5 Minn. 10

HENRY G. GERISH et al.vs.

JOHN JOHNSON.

Supreme Court of Minnesota.

Error to district court, Nicollet County.

Points and authorities for defendant in error: —

Defendant in error respectfully claims, that this honorable court has no jurisdiction herein upon this writ of error, founded on any final judgment or decree made or rendered in this action in the court below.Because, writ "shall not issue after the expiration of one year from the time of the rendition of the judgment to which it refers."Comp. Stat. 623.First, in this casewe find by return to writ — rule for judgment, and decree and judgment made and rendered in court below on the 31st day of December, 1858, which decree or judgment, together with costs, etc., docketed in Nicollet County on the 20th day of March, A.D. 1859, and order refusing to vacate judgment in this case, was made by the judge, March 24th, 1860; and lastly, writ of error issued on the 21st day of May, A. D. 1860.Second, nor will writ lie upon order overruling a motion to open a judgment.VoorhiesN. Y. Code. 490;1 Trob. & HalyPr. 433;2 Watts, 940;1 Rawle, 323;2 N. Y. 186;3 How. 424; Voorhies N. Y. Code, 474;10 How. 89.

Smith & Gilman, for plaintiff in error.

Cox & Bryant, and Thos. Cowan, for defendant in error.

FLANDRAU, J.

This was an action for the recovery of the possession of personal property.The complaint is very imperfect, and was demurred to by the defendants.The demurrer was sustained by the court below with leave to the plaintiff to amend, which he did not avail himself of.Thereupon the defendant moved for judgment; and the court, on the 31st day of December, 1858, rendered judgment in his favor, which, after reciting the preliminary steps that had been taken, grants the following relief: "It is adjudged and decreed that the defendants have final judgment for the return to the possession of the defendants, of the personal property mentioned and described in the complaint; that said John Johnston, or any person having possession of said property, shall, upon the service of a copy of this judgment, forthwith deliver the said property into the possession of the defendants as aforesaid, and that all further and other proceedings on the part of the plaintiff herein be forever stayed, besides the costs of this action."This judgment was signed by the judge.

The defendants, subsequently discovering that this judgment did not furnish them the relief they desired, probably because they could not reclaim the specific property, moved the court at the Le Sueur term, in March, 1860, for leave to amend the same by inserting therein the value of the property, and the damages they had sustained by its detention from them.This motion was denied March 24th, 1860, whereupon the defendants sue out a writ of error from this court, whether to bring up the judgment of December 31st, 1858, or the order of March 24th, 1860, does not appear in the papers furnished to the court; but it can in no way be material, because if directed to the judgment, it fails from having issued more than one year after the rendition thereof;Pub. Stat. 623, § 22; and if it is designed to bring up the order, it is a sufficient answer to it to say that a writ of error lies only to a final judgment;Pub. Stat. 621, § 2;...