Sheridan County Elec. Co-op. v. Anhalt

• Decision Date: 26 May 1953
• Docket Number: CO-OP,No. 9125,9125
• Citation: 127 Mont. 71,257 P.2d 889
• Parties: SHERIDAN COUNTY ELECTRIC, Inc. v. ANHALT.
• Court: Montana Supreme Court

Page 889

257 P.2d 889

127 Mont. 71

SHERIDAN COUNTY ELECTRIC CO-OP., Inc. v. ANHALT.

No. 9125.

Supreme Court of Montana.

Submitted Jan. 26, 1953.

Decided May 26, 1953.

Vernon Hoven, Plentywood, John Marriott Kline, Glasgow, argued the case orally for appellant.

C. T. Sanders, P. H. Cresap, V. G. Koch, Sidney, for respondent. C. T. Sanders argued the case orally.

BOTTOMLY, Justice.

This is an action in condemnation by the Sheridan County Electric Co-op., Inc., for right-of-way easement. Complaint and answer were filed. Hearing of the cause was had commencing on the 27th day of February 1951. The court took the matter under advisement and each side was given five days to submit briefs.

May 22, 1951, the court made its findings of fact and conclusions of law, and concluded with the statement: 'That a judgment of appropriation and condemnation in the form provided by law should be made and entered herein.' No order of condemnation, no order appointing commissioners, and no judgment was or has been made, given or entered in the proceeding.

May 31, 1951, the court on his application therefor, granted the defendant Elmer O. Anhalt, sixty days in addition to the statutory time in which to prepare, serve and file a bill of exceptions.

Notice of appeal was dated and filed on July 19, 1951, and, omitting the formal parts, is as follows: 'Please take notice that the defendant, Elmer O. Anhalt, hereby appeals to the Supreme Court of the State of Montana, from the findings of Fact and Conclusions of Law of the Court dated the 22nd day of May, 1951, and filed and entered on the same day. This appeal is taken from the whole of the Findings of Fact and Conclusions of Law and is based upon questions of law and fact.'

The question of jurisdiction was raised by this court on oral argument. The question of jurisdiction should be inquired into by the court at the earliest inception on its own initiative to ascertain whether or not it has jurisdiction. State ex rel. Irvine v. District Court, Mont., 239 P.2d 272, 275; Endresse v. Van Vleet, 118 Mont. 533, 539, 169 P.2d 719; Pulliam v. Pulliam, 163 Kan. 497, 183 P.2d 220, 221, 1 A.L.R.2d 418; Williams v. Sherman, 36 Idaho 494, 212 P. 971; McNee v. Hart, 117 Okl. 220, 246 P. 373; Kramer v. Pixton, 72 Utah 1, 268 P. 1029; Luckenbach v. Krempel, 188 Cal. 175, 204 P. 591; Kreiss v. Hotaling, 96 Cal. 617, 31 P. 740.

Both plaintiff and defendant argued that this court has jurisdiction, in that an appeal may be taken to this court from the findings of fact and conclusions of law in this kind of a case.

Condemnation proceedings are a special proceeding, provided for by statute. R.C.M.1947, § 93-9901 et seq.

The statute relied upon by appellant is subsection 3 of section 93-9905, R.C.M.1947, the pertinent part being: 'The plaintiff or defendant, or any party interested in the proceedings, can appeal to the supreme court from any finding or judgment made or rendered under this chapter, as in other cases. Such appeal does not stay any further proceedings under this chapter.' Emphasis supplied.

Appellant relies upon the interpretation of this section as set forth in State ex rel. Davis v. District Court, 29 Mont. 153, 74 P. 200, 201, wherein he asserts this court interpreted said section as permitting appeals from order similar to the findings of fact and conclusions of law in this case. However, in the Davis case the district court had made and entered an appealable order of condemnation from which the appeal was taken. Other questions were involved in that case. All this court said as pertinent here was: 'Section 2214 [now R.C.M.1947, § 93-9905], Code Civ.Proc., after enumerating the prerequisites to the granting of an order of condemnation, says: 'The plaintiff or defendant, or any party interested in the proceedings, can appeal to the Supreme Court from any findings or judgment made or rendered under this title, as in other cases.' It is very clear that under this statute the defendant had an appeal from this order.' Emphasis supplied.

Appellant likewise relies on the holding of this court in Park County v. Miller, 117 Mont. 157, 159 P.2d 358, but there again the district court had made and filed an appealable order of condemnation and appointment of commissioners, from which appealable order the appeal was taken. This court held that there was an appeal from the order.

The case of Van Dyke v. Midnight Sun Mining & Ditch Co., 9 Cir., 177 F. 85, was a case in condemnation where the lower court had made findings of fact followed by an order of condemnation, from which the appeal was taken. In Northern Mining & Trading Co. v. Alaska Gold Recovery Co., 9 Cir., 20 F.2d 5, also a condemnation case, the lower court made findings followed by an order appointing appraisers, from which order the appeal was taken. It will be noted that in each of the foregoing cases the lower court had made and entered an appealable order from which the appeal was taken. It is not questioned but that an appeal lies from such an order under subdivision 2 of section 93-8003.

Appellant states in his brief that: 'We can see little, if any difference between the orders in the above two Montana cases and the findings of fact and conclusions of law made here.'

The difference lies in the fact that appealable orders were entered in each of the foregoing cases while no such order was made or entered in the case at bar. Woodward v. Perkins, 119 Mont. 11, 14, 15, 171 P.2d 997; In re Sullivan's Estate, 112 Mont. 519, 118 P.2d 383; Conway v. Fabian, 108 Mont. 287, 302, 303, 89 P.2d 1022; Galiger v. McNulty, 80 Mont. 339, 260 P. 401; Weed v. Weed, 55 Mont. 599, 600, 179 P. 827; State ex rel. Reser v. District Court, 53 Mont. 235, 163 P. 1149; Taintor v. St. John, 50 Mont. 358, 362, 146 P. 939.

The right of appeal is purely statutory. The legislature has laid down the rules governing appeals. By R.C.M.1947, § 93-8001, it is declared: 'A judgment or order in a civil action, except when expressly made final by this code, may be reviewed as prescribed in sections 93-7901 to 937908 and 93-8001 to 93-8023, and not otherwise.' Emphasis supplied.

R.C.M.1947, § 93-8003, provides as far as pertinent here: 'An appeal may be taken to the supreme court from a district court in the following cases:

'1. From a final judgment entered in an action or special proceedings commenced in a district court, or brought into district court from another court.

'2. From an order * * * directing the delivery, transfer, or surrender of property * * *.' Emphasis supplied.

Findings of fact and conclusions of law are not a judgment nor are they an order, as known to our practice; they are the court's statement on which he will base his order or judgment. A party litigant may request findings in writing and have such request entered in the minutes of the court. R.C.M.1947, § 93-5305. Exceptions to the court's findings shall be filed in the court and served on the attorney of the adverse party within five days after receiving from or giving to the adverse party a written notice of the filing of the findings. R.C.M.1947, § 93-5307.

These statutory provisions provide the parties litigant an opportunity to point out to the court wherein movant believes the findings do not reflect the true facts or are defective in some particular, and the court may, if it agrees, modify the findings accordingly, and upon failure of the court to remedy the alleged defect, the party moving shall be entitled to his exceptions, and the same shall be settled by the judge as in other cases. R.C.M.1947, § 93-5306.

The record does not disclose that the appellant requested the trial court for findings nor that he moved that court for corrected or additional findings, nor that he filed or served objections to the findings and conclusions of law as found by the court. R.C.M.1947, § 93-5305, provides in part that, 'nor in cases tried by the court shall the judgment be reversed on appeal for defects in the findings, unless exceptions be made in the court below for a defect in the findings or in a finding.'

In that neither the Constitution nor the legislature has provided or seen fit to grant the right of appeal from findings of fact and conclusions of law, an appeal therefrom does not lie, and therefore this court has no jurisdiction to entertain this premature appeal.

It is asserted by appellant that respondent has not objected in any manner to the jurisdiction of this court to entertain this appeal. It is true that respondent also contends that this court has jurisdiction. However that may be, litigants and their attorneys cannot confer jurisdiction on courts; jurisdiction is conferred on courts only by the Constitution and the statutes. Where no jurisdiction exists by law, it cannot be conferred by consent or waiver. Compare: In re Woodside-Florence Irrigation Dist., 121 Mont. 346, 352, 194 P.2d 241, 244. 'Even though neither party questions the jurisdiction, it is the duty of the court to determine from the record whether or not it has jurisdiction.' 2 Am.Jur., Appeal & Error, § 15, p. 855. 'All the powers of any court must be derived from the government that created it.' 14 Am.Jur., Courts, § 162, p. 365. 'Jurisdiction of appellate courts being dependent on the law, consent, agreement, or stipulation of the parties confers no jurisdiction on such a court.' 4 C.J.S., Appeal and Error, § 43, page 124. 'Appellate jurisdiction is derived from the constitutional or statutory provisions creating the court, and can be exercised only in the manner prescribed.' 4 C.J.S., Appeal and Error, § 39, page 116; 21 C.J.S., Courts, § 85, page 127, and § 311, p. 562; In re Woodside-Florence Irrigation Dist., supra.

No legal appeal having been perfected herein, the attempted appeal is dismissed.

FREEBOURN, J., concurs.

ADAIR, Chief Justice.

This is a proceeding brought in the district court of Sheridan county seeking to exercise the right of eminent domain to condemn...