54 N.W. 316 | N.D. | 1893
On a former appeal in this action to this court, 2 N. D. 216, 50 N. W. Rep. 969, an order of the District Court setting aside a verdict in plaintiff’s favor, and granting a new trial, was reversed, and the trial court was directed to enter judgment in plaintiff’s favor, reversing the order of the District Court, and for the costs and disbursements of this court. On filing the remittitur below, and on plaintiff’s application therefor, judgment was entered in the District Court, reversing the said order of the District Court, and for plaintiff’s costs and disbursements made and incurred in this court on said appeal, amounting to the sum $80.65. This judgment bears date January 30th, 1892, and the same was entered by the Clerk of the District Court for Cass County, in the Third Judicial District, where the action was pending. At the same time, and on plaintiff’s motion therefor, another and separate judgment in this action was rendered and entered by the Clerk of said District Court, in favor of plaintiff and against defendant for the amount of the verdict, with interest, together with the costs and disbursements of said action in the District Court, aggregating $592.35. This judgment also bears date January 30th, 1892. Both judgments were rendered and entered without notice to defendant, or to its attorney in the action. It is conceded that both judgments were signed by the
In this court, defendant assigns the following errors: First, “That Judge Rose had no authority to sign the judgments, or to order them to be entered by the clerk of this court, and especially had no authority to do so beyond the limits of the Third Judicial Distinct.” Second, “That the proceeding of the plaintiff in causing two judgments to be entered herein is irregular, and contrary to law and the practice of this court.” Third,' “That said judgments were rendered and entered without notice to the defendant or its attorney.” Plaintiff’s assignments of error in this court are briefly as follows: First, The District Court erred in refusing to grant plaintiff’s motion, because the counter motion of plaintiff was justified by defendant’s motion 'to vacate theQjudgments. Second, If the judgments were void, then the court erred 'in denying plaintiff’s motion for another and valid judgment.
We can discover no merits in either of plaintiff’s assignments of error. Plaintiff’s motion was, under the circumstances, uncalled for, and premature. One branch of the relief sought by the motion was a confirmation of judgments already entered in plaintiff’s favor. While plaintiff’s judgments stood of record as entered, their confirmation would be superfluous and meaningless; and whether the judgments were to stand intact or not was the sole question to be determined by the motion previously made by defendant, and then pending. The other branch of plaintiff’s
Defendant’s assignments qf error present more serious questions. We will inquire first whether the trial ’court erred in refusing to vacate the judgments upon the ground that they wére entered without notice to the defendant or its counsel. The practice of entering judgments in the District Courts in contested cases without notice, and in the absence of the defeated party, was extensively prevalent in those portions of the late territory which are now embraced within the boundaries of this state, and since the state has'Been admitted the practice still continues to be prevalent. The number of such ex parte judgments is very great, and, unless the most imperative reasons exist for so doing, . we certainly ought not to establish a rule in this or in any case which could be used, or sought to be used, as a lever to upset the results of so’ much of the litigation which belongs to the past. But we know of no express statute or governing rule of practice that makes such holding necessary. Section 5095, Comp. Laws, provides that a judgment “may be entered by the clerk upon the _ order of the court, or the judge thereof.” At the time this section was enacted t.he line dividing the duties of the court while in session from those of the judge at chambers was much more
Another of defendant’s assignments of error is predicted upon the entry of two judgments instead of one. T.he entry of a judgment based upon the verdict, and embracing the costs and. disbursements in the District Court, was clearly regular — no stay having been granted — after the remittitur had been transmitted,
Was it error to enter a separate judgment for the costs incurred in the Supreme Court on the former appeal? We think not. The decision and mandate of this court awarded such costs, in terms, to the plaintiff. Nor do any of defendant’s assignments of error challenge the right of plaintiff to have judgment entered in the District Court for his costs .and disbursements incurred -on the . appeal. Defendant’s assignment of error upon this feature goes only to the fact that two judgments were entered, instead of one. Our own meager statutes upon the subject matter of- costs and disbursements incurred in this court afford us little in the solution of the point raised. Nor do the precedents in other jurisdictions —which for the most part are based upon local statutes — afford us much help. There are numerous precedents in other states for the entry of separate judgments for the costs and disbursements incurred in a court of review. It might happen, indeed, that a party who had prevailed in a court of review upon an appeal based upon some interlocutory order as was the case here, may be defeated, and judgment go against him at the end. In such case we do not see how the party who was awarded his costs on the appeal could ever recover them, if he was not allowed to enter a separate judgment for such costs. True, some courts have awarded the costs incurred on appeal to the successful party, conditionally, i. e. upon the condition of ultimate success on the merits. In such case the light to enter judgment for costs could not be determined in-advance of final judgment; but without deciding whether, under our statute, this court possesses the
A single question remains for determination. The authority of the Judge of the Fifth Judicial District to order the entry of the judgments in question is broadly challenged. Counsel for defendant say in their brief: “It is not the physical fact of signing the order outside the Third Judicial District which the defendant contends is error, but the assumption of jurisdiction of the cause, and the rendering of judgment, outside of the proper district.” We think the act of signing an ex parte order for judgment, if done within the state, but outside of the district where the action is pending, and the signing is done by the Judge of the District Court in which the action is pending, is not an irregularity in
Thus construing the statute, we-are next to inquire, whether as a matter of fact, the Judge of the Fifth District was requested to act in this matter for the Judge of the Third District. This question of fact, as already shown, is settled clearly upon the face of the judgment itself; but in the absence of such evidence, or of any written evidence of the request, we should assume-, the contrary not being made to appeal-, that any Judge of a District Court who had signed an order -in- a case not pending in his own district had, under the statute, lawful authority to do so. Irregularities in the entry of judgments in courts of record will never be presumed. If any exist, they must be brought upon the record, and made to appear affirmatively. ' There is no showing and no pretense in this case that the Judge of the Third District did not request the Judge of the Fifth District- to act. The entire scope of the assignment of error upon this feature is that Judge Rose could not assume jurisdiction to make the order while outside of his own district. This theory, as already shown, is untenable. Our conclusion must be, and is, that the appeal of the plaintiff should be dismissed, with costs, and that the order of the trial court, denying defendant’s motion to vacate the judgment, shoulchbe in all things affirmed. Such will be the order. Judgment below'will be entered accordingly.