Prondzinski v. Garbutt

• Decision Date: 26 April 1900
• Citation: 83 N.W. 23,9 N.D. 239
• Court: North Dakota Supreme Court

83 N.W. 23

9 N.D. 239

MICHAEL PRONDZINSKI v. JAMES GARBUTT

Supreme Court of North Dakota

April 26, 1900

Appeal from District Court, Walsh County, Sauter, J.

Action by Michael Prondzinski against James Garbutt. Judgment for plaintiff, and defendant appeals.

Affirmed.

Templeton & Rex and De Puy & De Puy, for appellant.

Cochrane & Corliss and Fraine & Douglass, for respondent.

OPINION

WALLIN, J.

The facts embraced in this record, which are, in our judgment controlling of the case, may be summarized as follows: The action is brought to obtain relief in equity, and, an issue of fact being joined in the action upon the complaint and answer, the case came on for trial in the District Court in June, 1895. At the trial both sides introduced testimony whereupon the plaintiff's counsel, being convinced from the evidence that plaintiff could not, in any event, prevail in the action without bringing in an additional party without resting the case requested the trial court to enter an order bringing in an additional party. This request was never directly acted upon by the trial court, and no action of any kind appears to have been taken in the case whatever until the following year. On July 20, 1896, the court, without making findings, entered an order for judgment in the action, whereby the court determined as follows: "That the complaint herein be dismissed, and that the lis pendens filed herein be discharged, and that the defendant recover his costs and disbursements in this action taxed and allowed at the sum of twenty-six dollars and fifty cents." So far as it appears in this record, no further steps were taken in the action until the 30th day of January, A. D. 1899, at which date judgment was formally entered by the District Court pursuant to the terms of said order as above set out. No mention is made in said order or said judgment of the question of res judicata or prejudice to another action, nor does the order or judgment in terms declare whether the judgment was or was not entered after a submission of the case, or as a result of a voluntary dismissal of the action by the plaintiff. It does appear, however, that no findings of fact or law were ever made or filed by the trial court prior to the entry of said judgment; and further appears that findings were never waived in any manner. Subsequently, and upon November 13, 1899, the District Court entered an order setting aside and vacating the judgment entered January 30, 1899, as aforesaid; said order being signed by the Honorable O. E. Sauter, who presided when the case was brought on for trial, and who signed the order for judgment. The order vacating said judgment embraced the following language: "Now, on the affidavit of Guy C. H. Corliss and the oral testimony of W. R. De Puy, and also the affidavit of James Garbutt, W. R. De Puy, and Charles F. Templeton, and upon the evidence heretofore taken in this case, and it appearing to the satisfaction of the court, and the court of its own knowlege being cognizant of the fact, that this action was never finally submitted to the court for a decision, and that no findings of fact or conclusions of law were ever made by the court herein; that such findings and conclusions have never been waived herein: It is ordered that said judgment heretofore entered herein on the 30th day of January, 1899, and the said order for judgment herein, be, and the same are hereby, in all things set aside and annulled. Dated November 13, 1899." An examination of the affidavits and proofs upon which said vacating order of November 13th was made discloses the fact that upon the hearing of the application to vacate the judgment the court was required to determine certain questions of fact, which questions were, briefly, whether the plaintiff's counsel ever, formally or otherwise, submitted the case on plaintiff's behalf for its decision, or whether the trial court intended to allow the case to be dismissed without prejudice; also whether findings had ever been made or waived in any manner in the action. These questions are all raised here, except that it is now undisputed that findings in the action were never made or waived prior to the entry of said judgment on January 30, 1899. In our opinion, the concession that no findings were made, and that findings were not in any manner waived, is alone decisive upon all questions involved in the appeal from the order of November 13, 1899, vacating the judgment. The absence of findings, when not cured by a waiver, both facts appearing of record affirmatively, is a plain violation of mandatory provisions of the statute, and is in itself an irregularity in the entry of the judgment which fully justified the trial court in setting aside the judgment. The irregularity was one which could be attacked by motion in the court which entered the judgment. See Garr, Scott & Co. v. Spaulding, 2 N.D. 414, 420, 51 N.W. 867. We therefore hold that the order of the District Court vacating the judgment of January 30, 1899, was properly made, and hence must be affirmed.

We now turn to another feature of the record. It appears that the trial court, after vacating its judgment, as already stated and on the same day its vacating order was signed, made and filed its findings of fact and law in the action, and directed the entry of a judgment thereon. Said order, omitting its title, is as follows: "The issues in this action having come on for trial before the court, and evidence having been offered and received on the part of the plaintiff and defendant, and the plaintiff having asked leave of the court to bring in as a party defendant one Joseph Garbutt, to whom it appeared from the undisputed evidence in the case the defendant had transferred the real estate involved in this action before the commencement thereof, and no decision of said application having ever been made, and the parties to said cause having failed to proceed further with the matter, the court makes the following findings of fact in this case, to-wit: That the defendant, James Garbutt, had, prior to the commencement of this action, transferred the real estate described in the complaint herein to one Joseph Garbutt by a deed of conveyance. And the defendant having offered evidence of no other defense in the case, and the said fact of said conveyance not being disturbed, the court finds as a conclusion of law that the present action to obtain from the defendant, James Garbutt, a quitclaim deed of the property in question cannot be maintained, for the reason that the said defendant, James...