Bissing v. Bissing, 115 P. 827

115 P. 827 | Idaho | 1911

MacLANE, District Judge.

This action was brought for divorce. There was no appearance for the defendant, and at the conclusion of the evidence the court took the same under advisement and subsequently entered the following order on the minutes: ‘ ‘ Comes now the court and announces its decision in this cause and orders that the relief prayed for in plaintiff’s complaint be, and hereby is, denied. Alfred Budge, Judge. ’ ’ There is nothing in the transcript to show that any other judgment was entered. This entry on the minutes constituted a mere order for judgment and not a judgment, within the meaning of see. 4807, Rev. Codes, and no appeal lies therefrom under the uniform rule of this court. (Durant v. Comegys, 3 Ida. 67, 35 Am. St. 259, 26 Pac. 755; Ah Kle v. McLean, 3 Ida. 70, 26 Pac. 937; Hodgins, Admr., v. Harris, 4 Ida. 517, 43 Pac. 72.)

Furthermore, this order for judgment is no part of the judgment-roll under sec. 4456, Rev. Codes, and can be brought here only by incorporation in a bill of exceptions, which has not been done. (Williams v. Boise Basin Min. & Dev. Co., 11 Ida. 233, 81 Pac. 646; In re Paige, 12 Ida. 410, 86 Pac. 273; Perkins v. Loux, 14 Ida. 607, 614, 95 Pac. 694, 696.)

We desire also to call attention to the fact that this being a default ease, the judgment-roll must contain “the summons with the affidavit or proof of service and the complaint with a memorandum indorsed thereon that the default of the defendant in not answering was entered, and a copy of the judgment.” (Sec. 4456, Revi Codes, subd. 1.) There is in this transcript no copy of the summons or proof of service. While this defect would be amendable by suggestion of diminution of the record under Rule 32, the other defects are fatal to the jurisdiction of the court, and the appeal must be dismissed.

Ailshie, Presiding J., and Sullivan, J., concur.