Travelers' Ins. Co. v. Weber

• Decision Date: 18 November 1891
• Citation: 50 N.W. 703,2 N.D. 239
• Parties: Travelers' Ins. Co. v. Weber.
• Court: North Dakota Supreme Court

2 N.D. 239

50 N.W. 703

Travelers' Ins. Co.

v.Weber.

Supreme Court of North Dakota.

Nov. 18, 1891.

Syllabus by the Court.

1. An order, made by a judge of the district court to show cause why an appeal from a justice's court should not be dismissed, cited the appellant to “show cause before the court at chambers,” etc. An order was made dismissing the appeal, which recited that it was made after hearing both sides on the return of the order to show cause. The order of dismissal was not made at a general or special term of the district court, nor did it recite in terms that it was made “by the court.” Only the following words were appended to the judge's signature to the order: “Judge District Court, Richland Co., N. D.” Held, that it appears from the record that the order of dismissal was an order of the district court, and was not a mere “chambers order.”

2. Held, further, that, inasmuch as the statute (section 4828, Comp. Laws) declares that district courts are “always open” except for the trial of issues of fact in actions, it follows that a judge of the district court cannot, at his option, and by the form of an order, or the style of his signature thereto, determine whether a given matter is or is not a court matter.

3. No appeal to this court was taken from the order dismissing the appeal, but after the time allowed for appeal had expired a motion was made before the district court to vacate the order of dismissal. The motion was denied, and defendant has attempted to appeal from the order refusing to vacate the first order. Held, that the order refusing to vacate the order dismissing the appeal is not appealable. This court will not take jurisdiction of an order of the district court refusing to vacate an appealable order made by the district court; nor can the time for appeal to this court be extended by an order of the court below vacating or refusing to vacate an appealable order. Whether an order dismissing an appeal from a justice court to the district court is appealable, not decided.

Appeal from district court, Richland county; W. S. Lauder, Judge.

Action by the Travelers' Insurance Company against Gertrude Weber. Judgment for plaintiff. Defendant appeals. Appeal dismissed.W. E. Purcell and L. B. Everdell, for appellant. McCumber & Bogart, for respondent.

Wallin, J.

This action originated in a justice's court under the forcible entry and unlawful detainer statute. The justice of the peace rendered judgment in favor of the plaintiff on December 15, 1890. Within the time limited by statute the defendant appealed from said judgment to the district court upon questions of both law and fact, and in the notice of appeal demanded a new trial. On January 5, 1891, plaintiff's counsel, acting upon the theory that (for certain reasons appearing hereafter) an appeal would not lie from such judgment to the district court, obtained the following order to show cause: “Now, therefore, on motion of McCumber & Bogart, attorneys for plaintiff, it is hereby ordered that the defendant in the above-entitled action show cause before this court at chambers, at the office of Hon. W. S. Lauder, judge of the district court in and for said county and state, on the 10th day of January, 1891, at 1 o'clock p. m., of said day, why the said appeal allowed by the said justice should not be dismissed. Dated January 5th, 1891. W. S. Lauder, Judge.” After a hearing, the following order was made: “This cause coming on to be heard on the order to show cause why the appeal allowed therein by the said justice to the district court in and for said county should not be dismissed, after hearing the arguments of counsel for the respective parties in support of and in opposition to such dismissal, and it appearing therefrom and from the affidavit of P. J. McCumber, made in support of such dismissal, and from all the papers and records in said action, that judgment for restitution and possession of the premises described in the complaint in said action was entered therein in favor of said plaintiff and against said defendant on the 15th day of December, 1890, and that no statement of the case has been made in said action, and no appeal taken on questions of law alone, and that no answer was made by the defendant in said action, but that the same was tried on the complaint and evidence of plaintiff, and that no issue was joined in the trial of said action, and that notice of appeal on both questions of law and fact was made in said action, and an appeal allowed by said justice therein; and it further appearing that said appeal was without authority of law; now, therefore, it is ordered that the said appeal be, and the same is hereby, dismissed, and the clerk of said district court is hereby ordered to return to said justice all papers and records sent him in said action by said justice. Dated January 10th, 1891. W. S. Lauder, Judge District Court, Richland Co., N. D.” No appeal has been taken to this court from said order of dismissal, but after time to appeal from the order had expired, and on March 13, 1891, defendant moved the district court to vacate said order. After hearing both sides, the motion was denied. The material part of the order denying the motion is as follows: “Now, on motion of P. J. McCumber, attorney for plaintiff, it is hereby ordered and adjudged that the said motion be, and the same is, denied. Dated March 13th, A. D. 1891. By the Court: W. S. Lauder, Judge.” The last order is sought to be appealed to this court.

The appellant assigns numerous errors, based upon the record transmitted to this court; but, as we view the case, such errors cannot be reached by this court for jurisdictional reasons. The point is made that the order attempted to be appealed from-the order refusing to vacate a previous order dismissing the appeal-is not an appealable order under our statute regulating appeals. We are of the opinion that the point is well taken, and must be sustained. The appellant has assumed by the appeal-and respondent does not discuss the point-that an order of the district court dismissing an appeal, if made by the court, is an appealable order, under subdivision 1, § 24, c. 120, Laws 1891, which reads as follows: “(1) An order affecting a substantial right, made in any action, when such order in effect determines the action and prevents a judgment from which an appeal might be taken.” Without deciding the point, we will assume, for the appellant's benefit, that an order of the district court dismissing an appeal from a justice court, if made by the court, is an appealable order. But appellant's counsel takes the position, inasmuch as the order of dismissal was not on its face an order made “by the court,” but was an order signed as follows, “W. S. Lauder, Judge District Court, Richland Co., N. D.,” that such order was not a court order at all, but was a mere “chambers order,” made by the judge out of court, and that such an order, under subdivision 5, § 24, c. 120, Laws 1891, was not appealable, and that the order refusing to vacate, which reads on its face, above the judge's signature, “By the court,” is appealable under said subdivision 5. We cannot yield our assent to this reasoning. In the first place, it appears from the record that the order to show cause why the appeal should not be dismissed cited defendant to “show cause before the court at chambers,” and the order of dismissal recites that it was made after hearing both parties upon such order to show cause. From these recitals it appears from the record that the order of dismissal was a court order,- i. e., an order made after hearing both sides in court. Furthermore, it is clear to our minds that the mode and style adopted by a judge of the district court in appending his signature to an order disposing of what is essentially a court matter cannot, under our statutes, determine the character of the order made. To assent to the notion that a judge of the district court is permitted, at his option, to determine, by the phraseology of an order, or by the style of his signature thereto, whether in deciding a matter he is exercising powers vested by the constitution in the district court, or whether he is acting in some other capacity not defined, would be to sanction a state of things closely resembling...