Beyer v. North American Coal Co., 173 N.W. 787

Beyer v. North American Coal Co.

173 N.W. 787 | N.D. | 1919

Christianson, Ch. J.

The plaintiff is a minority stockholder in the defendant the North American Coal & Mining Company. He has conducted much litigation to protect his right as such, and to prevent the assets of the corporation from being dissipated. He brought the present action for the purpose of recovering the moneys expended by him in conducting such litigation and in preserving the assets of the company. The sufficiency of the complaint was challenged by a demurrer, and on a former appeal this court held that it stated a cause of action. 37 N. D. 319, 163 N. W. 1061. In the complaint the plaintiff demanded judgment that an accounting be had by the officers and agents of the defendant corporation, and that-all parties owning *497stock be brought in and made parties to the action; and that a lien be adjudged upon the lands and premises herein described in favor of the plaintiff and against the North American Coal & Mining Company and other defendants herein involved for the amount adjudged to be due to the plaintiff; that said property be impressed with the payment of said lien, and that the same be paid before any other liens. The ease was tried to the court without a jury, and resulted in conclusions of law and order for judgment in favor of the plaintiff to the effect that plaintiff had expended certain sums for attorney’s fees and disbursements, and in the payment of taxes, for the aggregate of which the court ordered personal judgment in favor of the plaintiff, and against the defendant North American Coal & Mining Company alone. The court further ordered that such judgment be a lien upon the property of the defendant the North American Coal & Mining Company, and that, such property be sold to satisfy the same. Upon such findings and conclusions, the plaintiff caused to be entered a personal judgment not only against the North American Coal & Mining Company, but against all of the other named defendants. Subsequently the defendants moved that the judgment be amended by striking therefrom that portion which ordered personal judgment against said defendants other than the North American Coal & Mining Company. The motion was granted and plaintiff has appealed.

Clearly there was no error in amending the judgment so as to make it conform to the judgment actually ordered by the court. The clerk in entering a judgment acts in a ministerial capacity. He must enter such judgment as the court has ordered, and none other. A judgment entered by the clerk where no order for judgment has been made is void, and in fact no judgment at all. Dibble v. Hanson, 17 N. D. 21, 114 N. W. 371, 16 Ann. Cas. 1210.

The order appealed from is affirmed.

Grace, J. I concur in the result.