Shockman v. Ruthruff

• Decision Date: 03 December 1914
• Citation: 149 N.W. 680,28 N.D. 597
• Parties: SHOCKMAN et al. v. RUTHRUFF et al.
• Court: North Dakota Supreme Court

28 N.D. 597

149 N.W. 680

SHOCKMAN et al.

v.RUTHRUFF et al.

Supreme Court of North Dakota.

Oct. 29, 1914.

Rehearing Denied Dec. 3, 1914.

Syllabus by the Court.

From an adverse judgment in an action to determine adverse claims and to have decreed as established two deeds in their alleged title, plaintiffs appeal, demanding trial de novo.

Testimony reviewed, and held to establish the existence of the deeds in controversy. The judgment appealed from is ordered vacated, and a decree will be entered establishing such lost deeds, and quieting title in plaintiffs, and adjudging defendants to have no interest in the premises in suit.

Respondents' preliminary motion to strike certain matter from the appeal record is granted. A motion to vacate a judgment and reopen the case for further testimony is not properly a part of the statement of the case, but is a matter occurring subsequent to the judgment appealed from.

An appeal taken from such judgment alone does not authorize a review of the order made after judgment denying a vacation of said judgment.

Appeal from District Court, La Moure County; Coffey, Judge.

Action by August Shockman and Nicholas Shockman against Laura Louise Ruthruff and Charles D. Dickinson. Judgment for defendants, and plaintiffs appeal. Reversed, and decree for plaintiffs.Davis & Warren, of La Moure, and Pollock & Pollock, of Fargo, for appellants. M. A. Hildreth, of Fargo, for respondents.

GOSS, J.

[1] This suit is in equity to determine adverse claims. Preliminary to the merits, determination must be made of a motion by respondent to strike from the appeal record certain proceedings had upon a motion to reopen the case and vacate said judgment, the order of denial of which is not appealed from. The record facts on the motion to strike are that findings of fact, conclusions of law, and order for judgment made after a trial on the merits were filed, and a final decree thereon quieting title was entered December 7, 1911. One day before the entry of judgment plaintiffs had served notice of a motion to reopen the case and to vacate any judgment that might be entered pending hearing, and that leave be granted to submit further testimony. This motion was denied February 5, 1912, to which ruling an exception was allowed, and notice of which ruling that day was served, together with a copy of the findings, order for judgment, and notice of judgment previously given, filed, and entered. November 26, 1912, plaintiffs filed an undertaking on appeal accompanied by a notice of appeal: “From the judgment * * * herein entered on the 7th day of December, 1911.” On January 31, 1913, hearing was had upon the settlement of a statement of the case, at which the trial court was asked to include as a part of said statement the motion and supporting affidavits, together with the order of denial thereon entered upon the previous application to vacate the judgment and reopen the case. The same were excluded from the statement of the case proper to which exception was taken. The court, to facilitate a review of that order, made its certificate identifying the files used upon said motion as a part of the record offered upon the application had for settlement of the statement of the case. Thereupon all of said proceedings, with the statement of the case as settled, appellants caused to be certified to this court as the record on appeal, contending that the same should have been settled as a part of the statement of the case proper, and that the order denying plaintiffs' application to reopen the case for further proof is reviewable on this appeal from the judgment entered prior to hearing on said motion, vacation of which was denied. It is met by respondents' motion to strike said matter, as something occurring subsequent to the judgment appealed from and not embraced within the appeal taken, and therefore not before this court for review, and as to which the order of denial is conclusive.

[3][4] Such motion must be granted. The appeal is from the judgment only. The appeal taken does not constitute an appeal from the order of denial of a vacation of judgment and reopening of the case. Only those errors reflected in the statement of the case and those appearing on the judgment roll could be raised on this appeal. The motion to vacate and reopen for trial was something wholly subsequent to judgment. It was not a part of the trial had, but, instead, constituted a direct attack upon the judgment. Being subsequent to judgment, the order made thereon was an appealable order, and that, too, independent of the appeal taken on the merits from the judgment. Plaintiffs might have appealed from the order denying a vacation and leave to present further testimony without taking an appeal in the main case. It is appealable as a matter covered by the second subdivision of section 7225, R. C. 1905, permitting an appeal from “a final order affecting a substantial right made in special proceedings or upon a summary application in an action after judgment.” Weber v. Tschetter, 1 S. D. 205, 46 N. W. 201, wherein it is held that this identical statute must be construed as though its expression were a “summary application in an action after judgment.” Under section 7226, R. C. 1905, “upon an appeal from a judgment the Supreme Court may review any intermediate order or determination of the court below, which involves the merits and necessarily affects the judgment, appearing upon the record transmitted or returned from the district court”; but this statute does not authorize this court to review on an appeal from the judgment only an appealable order made subsequent to, and wholly independent of, the judgment, and not concerning the proceedings had on trial, but constituting an attack upon the judgment. If the propriety of an order denying a new trial entered after the judgment cannot be reviewed on an appeal from the judgment only (and it is settled in Heddrich v. Heddrich, 18 N. D. 488, 123 N. W. 276, and Paulsen v. M. W. A., 21 N. D. 235, 130 N. W. 231, that it cannot be so reviewed in an appeal from the judgment only), “for the manifest reason that such order was made long after judgment and the appeal is from judgment alone,” then it follows this order for the same reasons cannot be here reviewed. See, also, Sucker State Drill Co. v. Brock, 18 N. D. 8, 118 N. W. 348, again on appeal 18 N. D. 598, 120 N. W. 757, and the same entitled case again in 18 N. D. 532, 123 N. W. 667. Had the application to reopen and for further testimony been made and decided in advance of the findings, it would have constituted part of the proceedings had on the trial and been an intermediate order made during trial, and, as such, its incorporation within and as a part of the statement of the case would have been proper, and the propriety of a ruling thereon would have been reviewable upon an appeal from the judgment which would invoke a review of all the proceedings contained in the statement of the case. Under the Sucker Drill Co. v. Brock Cases one appeal could have been taken covering both judgment and the subsequent order complained of, but this was not done. Kinney v. B. O. A. Y., 15 N. D. 21, 106 N. W. 44, is also directly in point on that question of practice. The court properly excluded such extraneous matter in settling the statement of the case. It likewise followed proper practice in identifying the excluded matter by certificate as offered for settlement, thereby authenticating the record for appeal on the question submitted on this motion.

[2] The merits are now reached for a trial de novo upon the testimony upon which the judgment was entered. Both parties plead title in themselves. Plaintiffs assert that defendant Laura Louise Ruthruff, by mortgage foreclosure sale of a $60 mortgage held by her, procured a certificate to be issued to her thereon January 24, 1898, and which was recorded three days later. Plaintiffs assert that such sale was completed by the issuance thereon of a sheriff's deed June 27, 1899, to said certificate holder; that she and her husband soon thereafter conveyed said land to Henry Ruthruff by written deed of warranty delivered to him. In April, 1902, Henry Ruthruff and wife conveyed by deed to the Iowa Land & Trust Company, a corporation, which in March, 1905, deeded to August and Nicholas Shockman. Such alleged sheriff's deed and alleged warranty deed from defendant to her father-in-law, Henry Ruthruff, were not recorded, and are alleged to have been lost or destroyed. W. Edd. Ruthruff, husband of Laura Louise Ruthruff, and son of Henry Ruthruff, died June 28, 1902, an inmate of the state insane asylum. The alleged sale by Henry Ruthruff to the land company was conducted wholly by mail, and closed at a time when Ruthruff was sick, necessitating the assistance of a neighbor, F. D. Hall, and his examination of title papers to the land, and his making a memorandum of what was so sent with the deed to the company, and which memorandum, attested by Hall, was delivered to old man Ruthruff, and by him retained, is in evidence, together with testimony explanatory thereof. The defendant Laura Louise Ruthruff concededly is the owner of the property if she did not, prior to April, 1902, deed the land to her father-in-law, as claimed by him. She has never seen the land nor been in possession thereof nor claimed rents or profits therefrom. In August, 1909, Shockman discovered that the supposed sheriff's deed on foreclosure and the alleged deed of Laura to Henry Ruthruff were both unrecorded, causing a break in their record chain of title. She was thereupon asked soon afterwards to quitclaim this land to Henry Ruthruff, who, in turn, was to quitclaim it to plaintiffs. This she finally refused to do. She subsequently made an affidavit before one Ernest Malmberg, dated August 31, 1909, reciting that “the said certificate of sale is lost and cannot be found by this affiant; that this affiant has never sold, assigned, or...