Schleuder v. Corey
| Decision Date | 20 June 1883 |
| Citation | 16 N.W. 401,30 Minn. 501 |
| Parties | Gustav Schleuder v. H. B. Corey |
| Court | Minnesota Supreme Court |
Appeal by plaintiff from a judgment of the district court for Mower county.
Judgment affirmed.
Lafayette French, D. B. Johnson, Jr., and Geo. N. Baxter, for appellant.
Rush B Wheeler and L. A. Pierce, for respondent.
This case was here on appeal by plaintiff from the order denying a new trial, at the October term, 1882, and the order was affirmed under rule 14, for failure of the appellant to serve on respondent copies of the case and of his points. The cause having been remanded, judgment on the verdict was entered in the court below, and the case is now here on an appeal by plaintiff from the judgment. No point is raised on this appeal that was not presented by the record on the former appeal. The respondent objects to the court considering any question that might have been raised on the former appeal for the reason, as claimed by him, that all such questions are res adjudicata by the judgment of affirmance. The appellant insists that the judgment had only the effect of a dismissal of the then appeal, likening the case to that of a judgment entered against a plaintiff in the court below upon his failure to prosecute his action, which, he claims, can be no other than judgment of nonsuit or dismissal.
In the district court, the right of a plaintiff to avoid a judgment disposing of the merits, by his own act, or by failure to prosecute, is considerably restricted by statute. Gen. St. 1878, c. 66, §§ 262, 263. But in no case can an appellant in this court (unless by leave of the court or consent of the respondent) avoid a judgment on the merits. Merrill v. Dearing, 24 Minn. 179. Whether the appellant serve or fail to serve his points, the respondent has a right (unless the court otherwise order) to a judgment finally disposing of the merits. Of this right no act or neglect of the appellant can deprive him.
The theory of the rule requiring an appellant to make and serve his points is that they are his assignment of errors; that the right to claim as error any matter not appearing in them unless, perhaps, objections to the jurisdiction of the court below over the subject-matter, is waived; and that a failure to serve any points is, at the election of the respondent, a waiver of all errors, giving the latter the right to a judgment finally disposing of all matters...
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