Action for partition commenced in 1912 and tried and submitted to Honorable Josiab D. Ensign, then one of the judges of the Eleventh judicial district, in 1913. No findings of fact and conclusions of law were ever made, but the record evidences an informal oral decision. In 1919 plaintiff’s attorneys submitted to the judge proposed findings of fact and conclusions of law which, insofar as they called for a sale of the property and a division of the proceeds, are said to have been out of harmony with the announced position of the court.
After the retirement of Judge Ensign on January 3, 1922, no effort was made to prosecute the case to determination until March, 1924, when it was placed on the calendar for trial. A motion to dismiss for want of prosecution was granted and judgment of dismissal entered on April 5, 1924. Thereafter and on May 28, plaintiff made a motion for an order vacating the judgment and taxation of costs and for a further order which, if made, would have been for a new 'trial. This appeal is from the order denying that motion.
' The judgment was for dismissal, nothing more. There were no subsequent events giving rise to any new issues not determined by the judgment. The judgment was authorized by the order and was itself appealable. By an appeal therefrom the order for the judgment could have been reviewed. We consider that right of appeal exclusive under our statute (section 9498, G-. g. 1923), of the one here sought to be used. Certainly it was not the intention of the legislature, in providing for an appeal from a judgment and limiting the time for it to six months, to leave open the method of review at any time by a motion to vacate and an appeal from the order denying it.
Counsel for appellant are right in asserting that “an order refusing to vacate an unauthorized judgment is appealable,” citing Piper v. Johnston,
“The power to vacate judgments, on motion, is confined to cases in which the ground alleged is something extraneous to the action of the court or goes only to the question of the regularity of its proceedings. It is not intended to be used as a means for the court to review or revise its own final judgments, or to correct any errors of law into which it may. have fallen. That a judgment is erroneous as a matter of law is ground for an appeal, writ of error, or cer-tiorari, according to the case, but it is no ground for setting aside the judgment on motion.” Black, Judgments (2d ed.) § 829, citing, inter alia, State v. Horton,
If the appeal here attempted were permissible, it would be under subdivision 7 of section 9498, G. S. 1923, permitting an appeal “from a final order, affecting a substantial right, made in a special proceeding, or upon a summary application in an action after judgment.” Plaintiff is not within the scope of that language because he had no right, substantial or otherwise, to have the district court review its order for judgment by a motion to vacate the judgment.
By way of limitation, it is to be observed that we are not now concerned with cases arising under section 9283, G. S. 1923, vesting in the district court a discretion, at any time within one year after notice thereof, to “relieve a party from any judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect.” Neither is it a case under that sec-
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tkm of “good cause shown” for setting aside the judgment. One such “good cause” is fraud in procuring the judgment. Young v. Young,
The appeal is dismissed.