Kearney v. Chicago, St. Paul, Minneapolis & Omaha Railway Company

• Decision Date: 10 May 1907
• Docket Number: 15,144 - (42)
• Citation: 111 N.W. 923,101 Minn. 65
• Parties: PETER KEARNEY v. CHICAGO, ST. PAUL, MINNEAPOLIS & OMAHA RAILWAY COMPANY
• Court: Minnesota Supreme Court

111 N.W. 923

101 Minn. 65

PETER KEARNEY v. CHICAGO, ST. PAUL, MINNEAPOLIS & OMAHA RAILWAY COMPANY

Nos. 15,144 - (42)

Supreme Court of Minnesota

May 10, 1907

Appeal by defendant to the district court for Scott county from a judgment in justice court entered in favor of the plaintiff for $90 and costs. The appeal was tried before Morrison, J and a jury, which rendered a verdict in favor of plaintiff for $49.28. From the part of the judgment consisting of costs and disbursements taxed in favor of plaintiff, defendant appealed to the supreme court. Motion to dismiss the appeal granted.

SYLLABUS

Appeal from Judgment.

The time within which an appeal may be taken from a judgment complete and perfect on its face, expires six months from the date of its entry.

Appeal from Judgment -- Taxation of Costs.

The pendency of an appeal from the clerk's taxation of costs and disbursements. which are allowed by the clerk and included in the judgment, does not suspend the operation of the statute fixing the time for appeal from the judgment.

Case Distinguished.

Richardson v. Rogers, 37 Minn. 461, distinguished.

Nelson J. Wilcox, for appellant.

H. J. Peck, for respondent.

OPINION

BROWN, J.

This action was brought in justice court, where plaintiff had judgment for $90 and costs. Defendant appealed to the district court upon questions of both law and fact. On the trial in that court plaintiff had a verdict for $49.28. Plaintiff gave notice of taxation of costs and disbursements, to which defendant objected, on the ground that the recovery had before the justice was, in the district court, reduced one-half; it being insisted that $4.28 of the verdict represented interest on the damages awarded, and that plaintiff was not, therefore, entitled to either costs or disbursements. The clerk overruled the objection, taxed the costs and disbursements, and entered judgment for plaintiff accordingly. Judgment was so entered on June 21, 1905. Thereafter defendant appealed from the clerk's taxation, but the appeal was not brought before the court for hearing until June 19, 1906, when an order was entered affirming the clerk's decision. On August 7, 1906, defendant appealed from the judgment. Plaintiff moves to dismiss the appeal on the ground that it was not taken in time.

The motion is granted. R.L. 1905, § 4364, provides that an appeal from a judgment may be taken at any time within six months from its entry. The judgment in this case was entered June 21, 1905, but the appeal was not taken until August 1906, more than a year thereafter. To avoid the effect of this delay counsel for defendant insists that, inasmuch as an appeal had...