In re Eaton

• Decision Date: 08 April 1898
• Citation: 74 N.W. 870,7 N.D. 269
• Parties: In re EATON.
• Court: North Dakota Supreme Court

7 N.D. 269

74 N.W. 870

In re EATON.

Supreme Court of North Dakota.

April 8, 1898.

Syllabus by the Court.

In a disbarment proceeding instituted under section 434 of the Revised Codes, no costs or disbursements can be recovered by either party.

Appeal from district court, Grand Forks county; Charles F. Templeton, Judge.

Proceeding for the disbarment of Robert A. Eaton, attorney at law. A judgment of disbarment was reversed (62 N. W. 597), and the cause remanded, with directions to dismiss. A motion by defendant for the allowance of his costs was denied, and he appeals from the final judgment of dismissal. Affirmed.Robert A. Eaton, in pro. per. J. B. Wineman and R. M. Carothers, for respondent.

WALLIN, J.

This is a disbarment proceeding, brought under section 434 of the Revised Codes. The district court entered a judgment suspending the accused from practice as an attorney at law. This court, on appeal, reversed the judgment of the district court, and directed the court below to enter a judgment reversing its former judgment, and dismissing the proceeding. See In re Eaton, 4 N. D. 514, 62 N. W. 597. The record now before us discloses the following facts: In October, 1895, and pursuant to the direction of this court so to do, an order was made and entered in the district court annulling said judgment of suspension, and dismissing the proceedings. This order is silent as to the costs of the proceeding. Later, and in January, 1896, the matter of the costs was brought before the district court, and was disposed of by an order as follows: “The order to show cause entered herein on the 30th day of December, A. D. 1895, citing the petitioners in the above-entitled proceeding to show cause why the respondent, Robert A. Eaton, should not have his costs and disbursements herein adjusted in his favor and against the petitioners, J. B. Wineman and R. M. Carothers, having come on for hearing before the undersigned trial judge, all parties appearing personally, and the matter herein having been considered, it is now hereby ordered that the application of said respondent for such adjustment be, and the same is hereby, denied.” Thereafter, and in August, A. D. 1896, judgment was entered annulling the judgment of suspension, and dismissing the proceeding; but said judgment gave no costs or disbursements, and was wholly silent as to the costs and disbursements of the proceeding.From the last-mentioned judgment, the respondent appeals to this court, and claims here that the court below erred in not giving him a judgment for his costs and disbursements, and this is the sole question involved on this appeal.

Appellant's contention, briefly stated, is that a disbarment proceeding under the statute, being neither a civil nor a criminal action proper, is necessarily a “special proceeding,” citing Rev. Codes, §§ 5155-5160, and contends, further, that, under various provisions of the Code, costs and disbursements are awarded to the successful litigant in a special proceeding. Our first view of the case was (conceding that a disbarment proceeding is a special proceeding, within the meaning of the Code) that defendant had lost his right to have the matter of the costs reviewed in this court by failing to appeal from the order of the district court refusing to allow him his costs. The judgment as entered failing to embody any adjudication as to costs, we were led into holding that the question was not raised on the record. Further investigation has led us to change our views in this respect. We now think that the order disallowing the costs was in its nature an order requiring a judgment to be entered of a particular character, viz. a judgment without costs, and such a judgment was entered. A mere order for judgment is nonappealable, while, on the contrary, an order for judgment is reviewable on appeal from the judgment. The order preceding the judgment was not a final order. See Felber v. Railroad Co., 28 Minn. 156, 9 N. W. 635;Closen v. Allen, 29 Minn. 86, 12 N. W. 146;Dooly v. Morton, 41 Cal. 439;In re Weber, 4 N. D. 119, 59 N. W. 523. We are of the opinion that, under the authorities cited, the question of the right of the respondent to recover the costs and disbursements of the proceeding arises upon the record, and must therefore be disposed of upon its merits.

We have decided to hold that neither costs nor disbursements can be recovered in a proceeding of this character. It must be conceded, however, that, in a certain broad sense,...