Grey v. Cederholm

• Decision Date: 14 February 1884
• Citation: 2 Idaho 34,3 P. 12
• Parties: GREY, SHERIFF, v. CEDERHOLM
• Court: Idaho Supreme Court

3 P. 12

2 Idaho 34

GREY, SHERIFF, v. CEDERHOLM

Supreme Court of Idaho

February 14, 1884

JUDGMENT-PROBATE COURT DOCKET.-Entries in the docket of the probate court that complaint was filed, summons issued and served, demurrer to complaint filed, and the entry of fees for overruling demurrer and entrying default, with the following entries:

"To entering final judgment, $1.00; certified copy for roll $1.50; docketing judgment, 50 cents; making judgment-roll, 50 cents; sheriff's fees, $5.00; damages, $310.00"-do not constitute a judgment for either party, and an appeal from such a judgment to the district court will not lie.

(Syllabus by the court.)

VOID ENTRY NUNC PRO TUNC.-Under a statute requiring the entry of a judgment by an inferior court at the close of the trial an entry nunc pro tunc of such judgment in an inferior court made long after the trial, and after an appeal to the district court had been taken, is unauthorized.

APPEAL from District Court, Alturas County. Affirmed.

Affirmed.

Kingsbury & McGowan, for Appellants.

No brief on file.

Angel &amp Sullivan, for Respondents.

The only question that can be considered here is, Did the district court err in refusing to hear the case de novo upon questions of fact or to hear argument of counsel upon the questions of law raised by the demurrer? Under the provisions of section 666 of the Code of Civil Procedure, a statement must be adopted or settled by the justice or judge, which with a copy of the docket and all motions filed and the notice of appeal, constitute the papers to be used on the hearing of the appeal before the district court. It is clear from the provisions of above section that none of the pleadings in a case can be considered by the district court unless brought into the record by means of a statement. (Southern Pac. R. R. Co. v. Superior Court of Kern Co., 59 Cal. 471; People ex rel. Jones v. County Court of El Dorado Co., 10 Cal. 19; Funkenstein v. Elgutter, 11 Cal. 328.)

MORGAN, C. J. Prickett and Buck, JJ., concurred.

OPINION

MORGAN, C. J.

This case was commenced in the probate court of Alturas county, by filing a complaint on the twenty-seventh day of November, A. D. 1882. The next day summons was issued and made returnable December 3, 1882, and was so returned, served on defendants. On the return-day the defendants, by their attorneys, Messrs. Kingsbury & McGowan, appeared specially in said cause, and filed their motion to set aside and quash proceedings for reasons stated therein. This motion was overruled by the probate court. Thereupon a demurrer to plaintiff's complaint was filed by defendants. It does not appear from the transcript of the docket that the said demurrer was either sustained or overruled, the only reference thereto being found in the fee-bill, as follows, to wit:

To filing demurrer by defendant

25

To overruling demurrer, entering default for want of answer

.50

Then follow various entries in the record of fees for swearing witnesses, after which the following entries were made:

Plaintiff introduced in evidence judgment-roll of district court in suit of Chas. Nelson v. W. E. Milner:

Bond for release of attachment property

$ 25

(Two executions offered in evidence. Defendants'

counsel object to the introduction of this docu-

mentary evidence as being irrelevant and immate-

rial. Objection overruled. Excepted to by defend-

ants' counsel.)

To entering final judgment

1 00

Certified copy for roll

1 50

Docketing judgment

50

Making judgment-roll

50

Filing judgment-roll

25

$ 4 00

Sheriff's fees.

5 00

Damages

310 00

$ 319 00

There is nothing else in the record indicating any judgment by the probate court, either on the demurrer or on the evidence in the cause. From this supposed judgment, the defendants give notice of an appeal to the district court of Alturas county on the seventh day of December, A. D. 1882, and file an undertaking on the ninth day of December following. On the fifteenth day of January following the papers were placed on file in the district court. On the eighth day of August, 1883, the district court in and for said Alturas county, upon motion of plaintiffs herein, dismissed said appeal. To said judgment dismissing the appeal, the defendants excepted, and on the third day of October following took an appeal to this court.

The only substantial assignment of error in defendants' bill of exceptions is that the court erred in dismissing the appeal from the probate court. It is evident that the first question to be considered is, Was there any judgment by the probate court in this cause? If there was no judgment then there could be no appeal, and an attempted appeal should be at once dismissed. Section 350 of the Civil Code says: "A judgment is the final determination of the rights of the parties in an action or proceeding." Is there a determination of the rights of either party in this record? The entry of "damages, $ 310," is claimed to be a judgment. It has none of the elements of a judgment. It is nowhere stated that it is adjudged, ordered, decreed, or considered that the plaintiff should have or recover of defendants, nor that defendant should have or recover of plaintiff, the sum of $ 310, or any other sum. There is no word or words used which indicates an adjudication by the probate judge for or against either party. In this there is no indication whether judgment is given for plaintiff or for defendants, and one can only infer from the fact that the probate judge has charged a fee for "entering default for want of answer" that no answer was filed; and therefore that possibly it was the intention to enter judgment for plaintiff. There is no judgment entered either sustaining or overruling demurrer; no default of defendants entered; and no judgment for either plaintiff or defendants. No execution is authorized for either party, and the pretended judgment does not indicate which party is entitled to execution. (Wright v. Fletcher, 12 Vt. 431.)

The following entry: "We, the jury, find in favor of the plaintiff and assess his damages at $ 4,493 (and the record showed the entry); whereupon the court entered judgment on the verdict"--was held to be no judgment. (Faulk v. Kellums, 54 Ill. 188.)

In Barrett v. Garragan, 16 Iowa 47, referred to by counsel for appellant, the transcript showed proceedings up to and including the trial, after...