Kimpton v. Jubilee Min. Co.
| Citation | 55 P. 918,22 Mont. 107 |
| Parties | KIMPTON v. JUBILEE MIN. CO. et al. |
| Decision Date | 23 January 1899 |
| Court | United States State Supreme Court of Montana |
Appeal from district court, Jefferson county; Frank Showers, Judge.
Action by Washington I. Kimpton against the Jubilee Mining Company and another. From a judgment in favor of plaintiff in obedience to the mandate of the supreme court (41 P. 137; 42 P. 102), defendants appeal. Dismissed.
T. C Bach and Henry C. Smith, for appellants.
Walsh & Newman and Toole & Wallace, for respondent.
This action was brought to determine the rights of the respective parties in the waters of Crow creek, and to quiet title to the same. In February, 1894, the trial court adopted the special findings of the jury in favor of plaintiff, but rendered judgment thereon dismissing the action, with costs. The plaintiff appealed from the judgment, and on July 15 1895, this court reversed the judgment appealed from, and remanded the cause, with directions to enter judgment in favor of plaintiff, determining his title to the use of 160 inches of the water, and perpetually enjoining defendants from interfering therewith; and, on rehearing, its judgment of July 15th was affirmed. Kimpton v. Mining Co., 16 Mont. 379, 41 P. 137, and 42 P. 102. On July 31, 1895, there was entered in the court below the final judgment for plaintiff, in accordance with the order of this court. Thereafter defendants filed a paper designated "A Statement on Appeal," which the court settled. From the judgment so entered on July 31, 1895, defendants prosecute the present appeal.
Plaintiff has moved that the statement on appeal be stricken from the transcript, upon the ground that there is no authority of law for filing the same. Prior to the taking effect of the Codes (July 1, 1895), one of the means of preserving alleged errors of the trial courts was by statements on appeal. The Codes however, do not recognize or make provision for such method of proceeding for review on appeal of rulings or decisions of district courts. It would seem that the motion to strike is well interposed, under sections 3455, 3482, and 3483 of the Code of Civil Procedure, and section 5182 of the Political Code, and the authority of Gassert v. Bogk, 7 Mont 585, 19 P. 281, and Kelly v. Larkin, 47 Cal. 58 notwithstanding the fact that the trial was had in 1894, for the reason that the supposed statement on appeal was prepared and filed subsequent to the repeal of the statute providing therefor. We are inclined to think that no "proceeding" had been taken in the matter of such statement, or in furtherance of an appeal from the judgment entered July 31, 1895. It is deemed unnecessary, however, to decide the question raised by the motion, as the appeal must be dismissed because it is one which is, in effect, from the judgment of this court. The decree was entered in obedience to, and in exact conformity with, the judgment and order of this court. The district court was commanded to enter judgment in favor of plaintiff. This involved the performance of a mere ministerial act and duty (McMillan v. Richards, 12 Cal. 467; Sieber v. Frink, 7 Colo. 148, 2 P. 901; Matthews v. Houghton, 11 Me. 377; Fish v. Emerson, 44 N.Y. 376), and, when our mandate was obeyed by the court below, the decree it caused to be entered was the judgment of this court; and by that judgment the questions which did actually arise on the trial, and those which could have been presented, as well as the rights of the parties in the subject-matter of the suit, were finally determined. They became res judicata, and all that remained for the district court to do was to enter the judgment rendered by the supreme court. The rule, with its qualifications, is well expressed in Stewart v. Salamon, 97 U.S. 361, as follows: ...
To continue reading
Request your trial