In re Weber

• Decision Date: 23 June 1894
• Citation: 4 N.D. 119,59 N.W. 523
• Parties: In re WEBER.
• Court: North Dakota Supreme Court

4 N.D. 119

59 N.W. 523

In re WEBER.

Supreme Court of North Dakota.

June 23, 1894.

Syllabus by the Court.

1. Under the statutes of this state regulating the entry of judgments in district courts, a final judgment does not become such, and has no force or effect, until entered by the clerk in the judgment book.

2. An order of the district court dismissing an action for jurisdictional reasons, as well as in other cases, will authorize the clerk of the district court to enter judgment, but such an order does not itself constitute a judgment, nor is it a final determination of any question. An order of dismissal, whether entered in the minutes of the court or recorded in a book labeled “Order Book” or written out, signed by the judge, and filed, is still an order, and does not constitute a final determination or final judgment.

3. No appeal will lie from an order of the district court dismissing an action originating in that court or an appeal from a justice court for jurisdictional reasons. Such an order is not appealable under the first subdivision of section 24, c. 120, Laws 1891. The order is authority for the entry of a judgment; hence it does not “prevent the entry of a judgment from which an appeal might be taken.”

4. Until judgment is entered upon the order, the action is not determined, but is pending in the district court.

5. Where an action, originating in the district court or brought there by appeal, is dismissed for want of jurisdiction in the district court to determine the same, section 5194, Comp. Laws, expressly authorizes a judgment to be entered for costs. The section reads: “When an action is dismissed from any court for want of jurisdiction, or because it has not been regularly transferred from an inferior to a superior court the costs must be adjudged against the party attempting to institute or bring up the action.” The right to enter judgment for costs under this section depends upon the validity of the dismissal, and this court on appeal from such a judgment will review the dismissal upon the merits, as well as any question touching costs which properly arises upon the judgment record.

Appeal from district court, Richland county; W. S. Lauder, Judge.

Application of Gertrude Weber for a writ of certiorari to C. L. Mayer, justice of the peace in the city of Wahpeton. From the judgment on the return, the Travelers' Insurance Company appeals. Affirmed.

Bartholomew, C. J., dissenting.McCumber & Bogart, for appellant. W. E. Purcell and L. B. Everdell, for respondent.

WALLIN, J.

From the record transmitted to this court it appears that on the 15th day of December, 1890, in an action then pending in justice court in Richland county, presided over by said C. L. Mayer, wherein the Travelers' Insurance Company was plaintiff and Gertrude Weber was defendant, for the unlawful detention of certain lots and an hotel thereon, situated in the city of Wahpeton, in said county, a judgment was entered in favor of the plaintiff, whereby it was adjudged that the plaintiff was entitled to the possession of said lots and premises, and that said defendant unlawfully detained the same. The judgment was rendered upon complaint of the plaintiff, and evidence in support thereof, and there was no evidence and no answer on the part of the defendant. On the day the judgment was rendered, the defendant, Gertrude Weber, appealed from said judgment to the district court of said county upon questions of law and fact, and a new trial was demanded in the district court. No statement of the case was settled or filed in said justice court. On the 10th day of January, 1891, upon the application of the plaintiff in said action, the district court, after hearing counsel, made its order in writing, which order concluded as follows: “It further appearing that said appeal is without authority of law, now, therefore, it is ordered that the said appeal be and the same is dismissed, and the clerk of said district court is hereby ordered to return to said justice all papers and records sent him in said action by said justice.” The order was filed with the papers in said action, but was not entered in the judgment book nor in the judgment docket, but said order was recorded at length in a book kept in the office of the clerk of the district court known as the “Order Book.” No attempt has ever been made to appeal from such order. The fifth subdivision of section 24, c. 120, Laws 1891, specifies as among those orders from which an appeal may be taken to this court: “From orders made by the district court vacating or refusing to set aside orders made at chambers, where, by the provisions of this act, an appeal might have been taken in case the order so made at chambers had been granted or denied by the district court in the first instance.” The defendant proceeded on the theory that the order of dismissal was not appealable because made at chambers, but that it would have been appealable if made by the court, and under the foregoing provisions he moved in the district court to set aside the order of dismissal. This motion was denied, and from the order denying the motion to set aside an appeal was taken to this court. That appeal was dismissed. See Insurance Co. v. Weber, 2 N. D. 239, 50 N. W. 703. The court did not decide in that case whether or not the order of dismissal was an appealable order, but held that such order was, under our system, a court order when made, and hence no motion to set it aside was proper. If not appealable, the order refusing to set it aside was not appealable, and, if appealable, the appeal must be taken direct from the original order, and not from an order refusing to set it aside. When the remittitur in the case cited was filed in the district court, that court entered a judgment for costs against the appellant, including the costs in both courts. Certified copies of the dismissal and of the order of this court and of the judgment of the district court, entered upon the order of this court, were filed in the justice court, and thereupon the justice issued execution upon the original judgment in his docket, and placed the same in the hands of the proper officer for service. While the officer was proceeding under the execution, and upon application therefor, the district court issued a writ of certiorari to the justice, requiring him to certify and return to said court all his proceedings in said case. The justice made return, and, after argument, the court entered an order stating, in effect, that, at the time of the issuance of the execution by the justice, he, the said justice, was entirely without jurisdiction, because no judgment dismissing the appeal from the justice had ever been entered in the district court, and directing that the execution, and all the proceedings thereunder, be set aside and annulled. From a judgment entered on this order this appeal was taken.

We notice first that the propriety of the remedy pursued in this case has not been questioned; hence, we must not be understood as holding that certiorari is or is not the proper remedy in cases of this character. The case has been submitted to us on the theory that certiorari was the appropriate remedy, and we decide it accordingly. If the position of the learned trial court that no judgment of dismissal had been entered in that court be correct, and if a formal judgment of dismissal be necessary, then an affirmance must follow. Otherwise we must reverse the judgment. It is contended by respondent's counsel that the document which we have called the order of dismissal, meaning the dismissal of the appeal from justice court, which was entered on January 10, 1891, is not a judgment, and further contended that, under our statutes, there can be no judgment until the proper entry is made in the judgment book. If it be conceded, and we think it must be, that a technical judgment is required to dismiss an appeal from a justice court, then respondent is right. A mere order of determination made by the district court does not constitute a final judgment under our statutes. Before any judgment can have any force as such, it must, in our opinion, be entered in the judgment book. This question involves the examination of the statutes of this state regulating the rendition and entry of judgments in the district courts. Section 5024, Comp. Laws, reads: “A judgment is the final determination of the rights of the parties in the action.” Section 5095 reads: “Judgment, upon an issue of law or fact, or upon confession, or upon failure to answer, may be entered by the clerk upon the order of the court or the judge thereof.” Section 5101 reads: “The clerk shall keep among the records of the court a book for the entry of the judgments, to be called the ‘Judgment Book.”’ Section 5102 reads: “The judgment shall be entered in the judgment book, and shall specify clearly the relief granted or other determination of the action.” Section 5103 provides for making up the judgment roll, and directs that the roll shall be made up by the clerk after the entry of the judgment. This is apparent also from the requirement that the roll shall embrace a “copy of the judgment.” Under section 5104 a judgment will become a lien upon real property only when docketed in another book, known as the “Judgment Docket.” Section 5102, supra, is a copy of section 273 of chapter 66 of the General Statutes of Minnesota of 1878, and the section of the Compiled Laws regulating the making and filing of a judgment roll by the clerk of the district court is also copied substantially from section 275, c. 66, of the General Statutes of Minnesota for 1878.

The point involved in the case at bar has been considered and passed upon by the supreme court of Minnesota in several cases, and the holding of that court has always been, in effect, that the entry of the judgment is essential to its existence as a final adjudication. That court, in Rockwood v. Davenport, 37 Minn. 533, 35 N....