Butt v. Herndon, 36 Kan. 370

36 Kan. 370 | Kan. | 1887

The opinion of the court was delivered by

Horton, C. J.:

When this case was called in the district court for trial, the defendant moved to dismiss the appeal, on the ground, among others, that there was no appealable judgment rendered in the court below. This motion was overruled, and is the principal error complained of. Section 120 of the justices act reads as follows:

“In all cases, not otherwise specially provided for by law, either party may appeal from the final judgment of any justice of the peace to the district court of the county where the judgment was rendered.”

no part of judgment. A judgment is the final determination of the rights of the parties in an action. (Civil Code, §395.) Accordingly, the judgment must be final — that is, it must settle the matter which it purports to conclude. The reasons announced by the court to sustain its judgment, strictly speaking, form no part of the judgment itself. The reasons or findings upon which a -judgment is based are not res ad-. / , . -. , . , . . judicata, so as to bind the parties, unless a judgment is rendered. (Freeman on Judgments, 2d ed., §2; Burke v. Table Mountain Co., 12 Cal. 408; Davidson v. Carroll, 23 La. An. 108.)

The justice made the following findings:

“The court doth find from the evidence, that defendants A. J. Morris and O. W. Butt are not indebted unto plaintiff in any sum whatever; and doth further find that defendant Jacob M. Smith is indebted unto plaintiff in the sum of $60, and that the same is for work and labor.”

The only judgment rendered in the case was as follows:

“It is therefore considered and adjudged by me, R. B. Drury, justice of the peace, that the plaintiff,-William Herndon, do have and recover of and from defendant Jacob M. Smith the sum of $60, debt, and the costs of this action, taxed at $48.65.”

2. Appeal, wien not. The justice made a general finding in writing in favor of Morris and Butt, but no judgment was entered upon this finding in favor of Morris and Butt, or against Herndon. The matter was left by the justice pending and undetermined as to these parties. Generally, a written finding is made prior to the rendition of a judgment, but if a justice or a court orally announces its findings and renders judgment thereon, the omission of the finding is not substantial error. (L. L. & Q. Rld. Co. v. Comm’rs of Douglas Co., 18 Kas. 169.) If the action had been dismissed, or any other final judgment rendered against Herndon, an appeal could have been taken. (Butcher v. Taylor, 18 Kas. 558; Moore v. Toennisson, 28 id. 608.) As nothing but a finding was entered as between Herndon and Morris and Butt, and as no final judgment was rendered as between these parties, there was no foundation for the appeal. (Comp. Laws of 1879, ch. 81, § 20.)

Undoubtedly the justice would have rendered a final judgment as to these parties, if the attorney of Herndon had made a formal request for him so to do. The omission perhaps was unintentional; but as no appeal can be taken except from a final judgment, the court erred upon the transcript before it in refusing to dismiss the alleged appeal, the unintentional omission of the justice to render judgment as between Herndon, Morris and Butt being fatal to an appeal.

The judgment of the district court will be reversed, and further proceedings will be had in accordance with the views herein expressed.

All the Justices concurring.