158 Minn. 182 | Minn. | 1924
The above entitled cause was before this court upon a former appeal, when a new trial was granted the defendants, 155 Minn. 91,192 N. W. 360. Upon the going down of the mandate, defendants served a notice upon counsel for the plaintiff to tax costs, to which written objections were filed to the effect that no order for judgment had been made in favor of the defendants. On April 3, 1923, judgment was entered by the clerk in favor of the defendants to the effect that plaintiff take nothing by this action and that defendants, with the exception of defendant Christy, recover of plaintiff the sum of $101 costs, etc. No appeal was taken from the taxation or entry of such judgment to the district court. On August 3, 1923, plaintiff appealed from said judgment to this court.
Appellant contends that the judgment appealed from should be reversed because it was entered by the clerk without an order of the district court. It is well settled by the decisions in this state that in regard to a judgment erroneously entered by the clerk of the district court, or without authority of law, relief therefrom must first be sought in that court. State ex rel. Norris v. District Court, 52 Minn. 283, 53 N. W. 1157. Oldenberg v. Devine, 40 Minn. 409, 42 N. W. 88. Lundberg v. Single Mens’ Endowment Assn. 41 Minn. 508, 43 N. W. 394. Scott v. Minneapolis, St. P. & S. Ste. M. Ry. Co. 42 Minn. 179, 43 N. W. 966.
No application to have the judgment corrected or vacated was ever made to the court below. In such cases the proper remedy is by application to the court in which the judgment is entered to correct or vacate the judgment, and where that has not been done this court will not consider the matter upon appeal from the judgment. It follows that the judgment appealed from is affirmed without prejudice and without costs to either party.
Affirmed.