Oliver v. Kootenai County

• Decision Date: 15 April 1907
• Citation: 13 Idaho 281,90 P. 107
• Parties: WILLIAM OLIVER, Appellant, v. KOOTENAI COUNTY et al., Respondents
• Court: Idaho Supreme Court

90 P. 107

13 Idaho 281

WILLIAM OLIVER, Appellant, v. KOOTENAI COUNTY et al., Respondents

Supreme Court of Idaho

April 15, 1907

JUDGMENT-ORDER AFTER FINAL JUDGMENT-APPEAL FROM-MOTION TO DISMISS APPEAL.

1. Held, that the order appealed from is an order made after final judgment, and not a judgment.

2. Where judgment of dismissal has been made and thereafter a motion is made to set aside such judgment, and is heard by the court and overruled, the order overruling such motion is an order made after final judgment, and is an appealable order under subdivision 3 of section 4807, Revised Statutes.

3. When an order has been made for a judgment and the clerk refuses or neglects to enter it, he may be compelled to do so by writ of mandate.

4. An appeal from an order made after final judgment must be taken within sixty days after the same is heard and entered in the minutes of the court or filed with the clerk.

(Syllabus by the court.)

APPEAL from the District Court of First Judicial District for Kootenai County. Hon. Ralph T. Morgan, Judge.

Action to foreclose a mechanic's lien. Judgment of dismissal. Motion to set aside judgment overruled. Motion to dismiss appeal sustained.

Appeal dismissed, with costs in favor of the respondent.

Samuel R. Stern, for Appellant.

No order or judgment was ever entered from which we could have appealed until the order of October 31, 1905, was signed and entered. This court has, in the very decision cited by counsel, held that where the transcript contains no final judgment, an appeal is premature and cannot be taken, and the transcript in this case shows that no order was ever entered and therefore no judgment was ever entered, until October 31 1905, and it is not pretended that the judgment in question was not a final determination of the action.

J. J Guheen, Attorney General, and E. R. Whitla, for Respondents.

The order attempted to be appealed from, as shown by the order set out in the record and not by the notice of appeal, is a nonappealable order, and therefore the appellant has no standing in this court.

"An order refusing to set aside an order vacating a judgment is not appealable." (Hibbard etc. Co. v. DeLauty, 20 Wash. 539, 56 P. 34; National Christian Assn. v. Simpson, 21 Wash. 16, 56 P. 844; Doyle v. Republic Life Ins. Co., 125 Cal. 15, 57 P. 667; Harper v. Hildreth, 99 Cal. 265, 33 P. 1103; Morrell Hardware Co. v. Princess Gold Min. Co., 16 Colo. App. 54, 63 P. 807.)

"Paragraph 3, section 4807 of the Revised Statutes, enumerates the orders from which an appeal may be taken, and that other orders can be reviewed only on an appeal from a final judgment." (Mahoney v. Elliott, 8 Idaho 356, 69 P. 108.)

This same position was held by this court in the case of Ah Kle v. McLean, 3 Idaho 70, 26 P. 937. (Durant v. Comegys, 3 Idaho 17, 26 P. 755; Adams v. McPherson, 3 Idaho 177, 27 P. 577; Hodgins v. Harris, 4 Idaho 517, 43 P. 72; Thiessen v. Riggs, 5 Idaho 21, 46 P. 829.)

SULLIVAN, J. Ailshie, C. J. concurs.

OPINION

SULLIVAN, J.

It is contended by counsel for appellant that this is an appeal from a judgment of dismissal of the district court of Kootenai county after having sustained an amended demurrer to the complaint.

The notice of appeal recites that the appeal is taken from a "judgment made and entered on the thirty-first day of October, 1905, dismissing this action as to the defendant, Kootenai county, on sustaining the demurrer of said county to the complaint."

A motion was made to dismiss this appeal on the ground that the appeal is not taken from an appealable order or judgment. It appears from the transcript that an amended demurrer on behalf of Kootenai county was filed to the complaint, which demurrer was sustained by the court, and the plaintiff failed to plead further, and the cause was dismissed as to Kootenai county. Thereafter, on May 1, 1905, counsel for the appellant moved the court for an order setting aside said judgment and for a reargument of the question involved in said demurrer, which motion was based upon the affidavit of counsel for appellant and files of the case. Said motion came on for hearing before the court, and the court having heard argument of counsel thereon, took the matter under advisement, and thereafter, on the thirty-first day of October, 1905, made the following order, overruling said motion to set aside said judgment, to wit:

"This cause having heretofore come on for hearing upon the demurrer of the defendant Kootenai county to the plaintiff's complaint as filed herein, and the court having sustained the demurrer, and the plaintiff having failed to further plead within the time allowed by the order of the court, and the said cause having been dismissed, and the said plaintiff having filed herein a motion to set aside the judgment of dismissal, and the said motion having heretofore come on for hearing before the court at chambers, and the court having heard the argument of counsel thereon, and having at that time taken the matter under advisement;

"Now, Therefore, at this time the court being well and fully advised in the law in the premises;

"It is hereby ordered, adjudged and decreed, that the motion of plaintiff herein to set aside the judgment heretofore entered against said plaintiff and in favor of the defendant, the County of Kootenai, upon the defendant's demurrer to plaintiff's complaint, be, and the same is hereby, overruled and the said action dismissed as to the defendant, the County of Kootenai.

"Dated this 31st day of October, 1905."

It is contended by counsel for appellant that said order is a judgment, and this appeal is taken from it, while it is contended by counsel for respondent that said order is not a judgment, but simply an order overruling defendant's motion to set aside a former judgment.

It is conceded by respective counsel that after the court had sustained said demurrer and ordered a judgment of dismissal that no judgment was entered. After an order for a...