Oldenberg v. Devine
| Decision Date | 01 May 1889 |
| Citation | 40 Minn. 409 |
| Parties | CHARLES W. OLDENBERG <I>vs.</I> ROBERT DEVINE, impleaded, etc. |
| Court | Minnesota Supreme Court |
Appeal by defendant Devine from a judgment of the district court for Scott county, entered against defendant and the sureties on his appeal from a judgment of a justice of the peace, before whom the action was first brought. The justice had rendered judgment against the defendant for $11.50 damages and $15.41 costs; the defendant appealed on law and facts, and the judgment in the district court recites, "this action being upon the calendar for trial at the June, 1888, general term of this court, and upon the call thereof it was stipulated in open court that the said action should be tried together with the case of Chas. W. Oldenberg against Robert Devine et al., and that the verdict therein should be the verdict in the above-entitled action; and whereas judgment has been ordered for the plaintiff in that action" — and proceeds to affirm in all things the judgment of the justice, and to adjudge a recovery of $11.50 damages and $30.25 costs against defendant and his sureties. The action was for trespass to realty, and the defence that the locus in quo was a highway. The record on this appeal does not show, otherwise than by the recital in the judgment, the terms of the stipulation or the proceedings in the other action.
Willis, Nelson & Speel, for appellant.
R. A. & F. C. Irwin, for respondent.
This is an appeal from a judgment entered in the district court in a cause brought to that court by appeal from the judgment of a justice of the peace. The appellant contends that the judgment of the district court should be vacated, because it was entered by the clerk without any other authority than a written stipulation of the parties, no order of the court therefor having been made; and also because the record does not show that, even under the terms of the stipulation, the judgment was authorized. The authority of the judge of the district court having never been exercised, either in respect to the entry of the judgment nor subsequently upon motion to set it aside or to rectify it, the question here presented will not be considered upon an appeal from the judgment. Eaton v. Caldwell, 3 Minn. 80, (134;) Piper v. Johnston, 12 Minn. 27, (60, 65;) County of Hennepin v. Jones, 18 Minn. 182, (199;) Coles v. Berryhill, 37 Minn. 56, (33 N. W. Rep. 213.) No error being shown which we can consider, the judgment is affirmed.
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