Universal Motors v. Coman

• Decision Date: 22 June 1944
• Docket Number: 6897.
• Citation: 15 N.W.2d 73,73 N.D. 337
• Parties: UNIVERSAL MOTORS v. COMAN.
• Court: North Dakota Supreme Court

15 N.W.2d 73

73 N.D. 337

UNIVERSAL MOTORS v. COMAN.

No. 6897.

Supreme Court of North Dakota

June 22, 1944

Syllabus by the Court.

1. Orders made by the district court or judge thereof without notice are not appealable. Subdivision 5 of Section 7841, Compiled Laws 1913.

2. A written decision of a court or judge which does not make final disposition of the rights of the parties in an action must, although designated a judgment, be considered as an order upon appeal.

J K. Murray, of Bismarck, for appellant.

C F. Kelsch, of Mandan, for respondent.

BURKE, Judge.

In this case the District Court of Morton County granted a motion for the dismissal of an appeal from a justice court judgment upon the ground that the court had lost jurisdiction of the case due to the failure of the defendant to file a proper appeal bond. Thereafter the court of its own motion, and without notice to the parties, vacated its order of dismissal and the judgment entered thereon and made an order denying the motion for a dismissal of the appeal. A judgment reinstating the appeal from justice court was thereupon entered. Plaintiff has appealed from both the order and the judgment.

The order is not appealable. Subdivision 5 of Section 7841, Compiled Laws 1913, provides:

'Orders made by the district court or judge thereof without notice are not appealable; but orders made by the district court after a hearing is had upon notice which vacate or refuse to set aside orders previously made without notice may be appealed to the supreme court when by the provisons of this chapter an appeal might have been taken from such order so made without notice, had the same been made upon notice.'

This section clearly requires that the district court be given an opportunity, upon a noticed hearing, to reconsider orders which it has made without notice, as a condition precedent to appeal. No such opportunity was given to the court in this case.

The judgment merely reinstated the appeal from justice court. It was not a final determination of the rights of the parties to the action. Although designated a judgment, it was not a final judgment and therefore not one from which an appeal will lie. Strictly speaking, under the North Dakota Code, there are no judgments other than final judgments. Section 7599, Compiled Laws of North Dakota 1913, defines a judgment as 'the final determination of the rights of the parties in the action.' This definition is 'just broad enough to comprise all final judgments and all final decrees and narrow enough not to cmprise any which is less than final.' Freeman on Judgments, 5th Ed., Section 17. 'Every direction of a court or judge...