Tracy v. Scott

• Decision Date: 12 December 1904
• Citation: 101 N.W. 905,13 N.D. 577
• Parties: TRACY v. SCOTT et al.
• Court: North Dakota Supreme Court

13 N.D. 577

101 N.W. 905

TRACY

v.SCOTT et al.

Supreme Court of North Dakota.

Nov. 17, 1904.

On Rehearing, Dec. 12, 1904.

Syllabus by the Court.

1. The procedure by which an injunction against the foreclosure of a mortgage by advertisement may be obtained under section 5845, Rev. Codes 1899, is not a special proceeding within the meaning of that term as used in the Code.

2. An order denying a motion to vacate such injunctional order is not appealable.

On Petition for Rehearing.

3. The respondent is entitled to costs upon the dismissal of an appeal from an order which is not appealable.

Appeal from District Court, Barnes County; S. L. Glaspell, Judge.

Action by John Tracy against W. A. Scott and H. O. Wheeler. Judgment for plaintiff, and defendants appeal. Dismissed.J. E. Robinson, for appellants. Winterer & Winterer, for respondent.

ENGERUD, J.

Appellants commenced proceedings to forelose a mortgage of real property by advertisement under the power of sale contained in the mortgage. The respondent obtained from the judge of the district court an order enjoining further proceedings under the power of sale. The order was applied for and issued under the provisions of section 5845, Rev. Codes 1899, which provides, in substance, that when, in case of foreclosure by advertisement, it shall be made to appear to the satisfaction of the judge of the district court by affidavit of the mortgagor, his agent or attorney, that the mortgagor has a legal counterclaim or defense against the collection of the whole or any part of the mortgage debt, such judge may, by an order, enjoin the foreclosure by advertisement, and direct that all further proceedings for the foreclosure be had in the district court. The mortgagee and his attorney, W. A. Scott, thereupon applied to the district court to vacate the injunctional order. The motion was denied, and the mortgagee and his attorney joined in an appeal to this court from an order denying the motion to vacate the injunctional order. The respondent contends that the order appealed from is nonappealable, and moves to dismiss the appeal. A similar appeal was before this court in McCann v. Mortgage, Bank & Investment Co., 3 N. D. 172, 54 N. W. 1026. The question as to the right to appeal from the order was not discussed by counsel in that case, but the court expressly held that it was not appealable under subdivision 3, § 24, c. 120, p. 309, Laws 1891 (subdivision 5, § 5626, Rev. Codes 1899), and further expressed the opinion that the appeal could be sustained, if at all, only as an appeal from “a final order affecting a substantial right, made in a special proceeding.” Subdivision 2, § 24, c. 120, p. 309, Laws 1891 (subdivision 2, § 5626, Rev. Codes 1899). The question has been fully argued before us, and we are satisfied that neither of the subdivisions of section 5626, Rev. Codes 1899, cited above, will sustain this appeal, and that the order is not appealable. The right to appeal does not exist unless it is given by statute. If there is any appeal from the order in question, the right thereto must be found in chapter 14, Code Civ. Proc. (Rev. Codes 1899, §§ 5603-5632). The first section (5603) of that chapter limits the right of appeal to judgments and orders “in a civil action or in a special proceeding.” Section 5626 still further confines the right of appeal to those judgments and orders specifically enumerated therein. That section, instead of enlarging, restricts the right of appeal, and has reference only to such orders and judgments as are described in general terms in section 5603-judgments and orders in a civil action or in a special proceeding. In view of the numerous decisions of this court involving the meaning of the statutory term “special proceeding,” it is very clear that the procedure to obtain the injunctional order provided for in section 5845, Rev. Codes 1899, does not come within the meaning of that term as used in the statute granting the right of appeal. See State v. Davis, 2 N. D. 461, 51 N. W. 942; Myrick v. McCabe, 5 N. D. 422, 67 N. W. 143;In re Eaton, 7 N. D. 269, 74 N. W. 870;Carruth v. Taylor, 8 N. D. 166, 77 N. W. 617. The reasoning of the court in the Eaton Case is applicable to the case at bar. It was a proceeding to disbar an attorney. The proceedings were dismissed, and the defendant claimed that he was entitled to recover his costs and disbursements, because costs were allowed by statute to the successful party in a special proceeding; and he contended that a disbarment proceeding came within the statutory definition of that term. In that case, as in this, attention was called to the provisions of the Code (sections 5155-5157) which classify remedies into actions and special proceedings, and provide that every remedy other than an action is a special proceeding. The right to costs was denied. Following precedents established by former decisions, the court held “that a remedial proceeding in court, which is neither a civil nor a criminal action, need not necessarily be classed as a special proceeding for all purposes.” The court further said (page 274, 7 N. D., page 871, 74 N. W.: “That it was not the legislative purpose, in making the general classification of remedies in court, to settle all details of practice and procedure in such purely statutory proceedings as the Legislature might have authorized or might thereafter see fit to authorize, regardless of their objects or character. Doubtless...