State ex rel. City of Duluth v. N. Pac. Ry. Co.

• Decision Date: 26 October 1906
• Citation: 99 Minn. 280,109 N.W. 238
• Parties: STATE ex rel. CITY OF DULUTH v. NORTHERN PAC. RY. CO.
• Court: Minnesota Supreme Court

99 Minn. 280

109 N.W. 238

STATE ex rel. CITY OF DULUTH

v.NORTHERN PAC. RY. CO.

Supreme Court of Minnesota.

Oct. 26, 1906.

Appeal from District Court, St. Louis County; Wm. A. Cant, Judge.

Action by the state on the relation of the city of Duluth against the Northern Pacific Railway Company. Judgment for plaintiff for part of the relief claimed, and it appeals. Motion to dismiss denied.

Jaggard, J., dissenting.

Syllabus by the Court

Where a plaintiff recovers a judgment in his favor, but not for all of the relief claimed, and his adversary appeals from the judgment and assigns errors only as to the part of the judgment unfavorable to him and the judgment is affirmed on his appeal, the plaintiff thereafter, and within the time limited for taking an appeal, may appeal from that part of the judgment which is to his disadvantage.

Motion to dismiss the appeal denied.

Bert Fesler, for appellant.

Emerson Hadley, for respondent.

START, C. J.

Motion to dismiss the relator's appeal on the grounds (1) that this court has now no jurisdiction of the judgment from a part of which the appeal was taken; (2) that the relator has waived its right to prosecute such appeal. The nature of the action and its facts appear in the opinion of the court in disposing of a former appeal by defendant from the same judgment. State ex rel. v. N. P. Ry. Co. (Minn.) 108 N. W. 269. It is only necessary to here state that the action was brought to compel the defendant to repair a viaduct over its railroad tracks at Lake avenue in Duluth, and to repair the street and rebuild the sidewalks on the approaches to the viaduct. Such proceedings were had in the district court of the county of St. Louis that judgment was entered in favor of the relator granting all the relief which it claimed, except as to paving and sidewalks. On March 23, 1906, the day on which the judgment was entered, the defendant appealed from the judgment to this court and assigned errors only to the part of the judgment unfavorable to it. The relator appeared in this court in opposition to such appeal and secured its affirmance. Judgment affirming the judgment of the district court was entered in this court on July 26, 1906, and on the next day a writ of error from the Supreme Court of the United States to review such final judgment was allowed on the petition of the defendant. Thereafter, and on September 1, 1906, the relator served a notice of appeal to this court from so much of the judgment of the district court as denied it relief as to the paving and sidewalks. This last appeal the defendant moves to dismiss upon the grounds stated.

It is the contention of the relator that the statute gives either party the right to appeal, within six months, from the whole or any part of the judgment; hence the motion to dismiss the appeal must be denied. This conclusion does not necessarily follow from the premises, for there may be a waiver of the right to appeal, or an estoppel by the action of the party from claiming the right. Wright, Barrett & Stillwell Co. v. Robinson, 79 Minn. 272, 82 N. W. 632; 2 Cyc. 644-652; Elliott on Appellate Procedure, § 150. Whether, upon the facts stated, the relator can now prosecute an appeal from that part of the judgment which was against it is a question which has never been decided by this court. In the case of Guarantee Company of North America v. Insurance Co., 124 Fed. 170, 59 C. C. A. 376, an action for the recovery of money only, the jury returned a general verdict for the plaintiff, and also special findings. Judgment was rendered by the circuit court in favor of the defendant upon the special findings. The plaintiff sued out a writ of error. The defendant sued out no writ of error, but in its brief called attention to certain rulings of the trial court which, it insisted, entitled it to a new trial if judgment in its favor should not be sustained. The appellate court, without considering such alleged errors, reversed the judgment upon the ground that the special findings were not inconsistent with the general verdict, and directed the court below to render judgment for the plaintiff. This was done, and the defendant sued out a writ of error and assigned as errors the rulings of the trial court complained of. It was held that the questions raised by the rulings on the trial of the action were not res judicata, for the reason that the first judgment granted the defendant all the relief it sought; that only those aggrieved by a judgment could maintain a writ of error or appeal to reverse it; and that the second writ of error could be maintained because the errors assigned on the second writ could not have been litigated on the first one. The case of Smith v. Bogenschultz (Ky.) 20 S. W. 390, is to the same effect.

In the case of Page v. People, 99 Ill. 418, it was held that, where one party prosecuted a writ of error from the appellate court to an inferior court, if the defendant in error in that case presented the same question as presented by him on a writ of error afterwards sued out by him from this court, or if it was his duty to have caused it to be presented by cross-errors, the judgment of affirmance on the prior writ of error will be a bar to the error assigned on the second, otherwise it will not be a bar. To the same effect are the cases of Brennan v. Bank, 10 Colo. App. 368, 50 Pac. 1076;Wickliffe v. Buckman, 51 Ky. 424;McKay v. Mayes, 32 S. W. 606, 17 Ky. Law Rep. 827;Ormsby v. Ihmsen, 34 Pa. 462. In the case of Poeyfarre v. Delor (La.) 7 Mart. (O. S.) 1, it was held that, after a judgment had been affirmed on the defendant's appeal, the plaintiff might appeal, and have any errors therein to his disadvantage corrected.

The case of Caston v. Caston, 54 Miss. 512, supports the contention of the defendant herein. In that case the plaintiff obtained a decree against the defendant,...