Herrick v. Butler

| Minn. | Jan 11, 1883

.Vanderburgh, J.^*

Judgment dismissing the action and for costs against the plaintiff, taxed without notice, was entered August 31, 1880. Plaintiff afterwards moved the court to set aside the judgment for irregularity, on the ground of defects in the record and judgment-roll, and because costs were irregularly taxed. The court, however, had jurisdiction, and the action appears to have been dismissed upon the trial by the referee, in pursuance of a stipulation of the parties. This stipulation was, however, for judgment of dismissal without costs and without notice. The court granted jalaintiff’s motion in so far as to vacate the taxation and allowance of costs in the judgment, but denying further relief, with leave, however, to defendant to retax costs upon notice. Plaintiff thereupon' appealed from that portion of the order refusing to set aside the judgment, and granting leave to readjust the costs.

As to the imperfect condition of the judgment-roll, want of jurisdiction does not affirmatively appear, and a judgment of a court of general jurisdiction is presumed valid until the contrary is shown. It is not enough to overcome this presumption that the judgment-roll is defective, or that some of the papers which should properly constitute a part of it are wanting. Gemmell v. Rice, 13 Minn. 371, (400;) Williams v. McGrade, Id. 39, (46;) Jorgensen v. Griffin, 14 Minn. 346, (464;) Holmes v. Campbell, 12 Minn. 141, (221;) Piper v. Packer, 20 Minn. 245" court="Minn." date_filed="1873-04-15" href="https://app.midpage.ai/document/in-re-the-probate-of-the-last-will--testament-of-penniman-7962856?utm_source=webapp" opinion_id="7962856">20 Minn. 245, (274.) These omissions are, however, sufficiently supplied and explained in the amended return made to this court, which, we think, should be considered on this appeal.

It was irregular to enter up a judgment for costs, in view of the stipulation of the parties, but not to enter the judgment of dismissal. It was sufficient for the referee to direct a dismissal of the action by the consent of the parties without any further report, and thereupon the clerk might regularly enter the judgment, if without costs, without notice; if with costs, upon notice of taxation. McCormick v. Miller, 19 Minn. 384, (443;) Thompson v. Myrick, 24 Minn. 4" court="Minn." date_filed="1877-07-27" href="https://app.midpage.ai/document/thompson-v-myrick-7963326?utm_source=webapp" opinion_id="7963326">24 Minn. 4; Rule 28, Dist. Ct. The dismissal was in pursuance of Gen. St. 1878, c. 66, § 262, subd. 3. Johnson v. Robinson, 20 Minn. 153, (170.)

The plaintiff is not prejudiced by the refusal of the court to set aside the judgment entirely. Neither is he aggrieved by the fact that leave was granted to retax the costs, which, by itself, is not a decision or order which is appealable. Felber v. South. Minn. R. Co., 28 Minn. 156" court="Minn." date_filed="1881-07-22" href="https://app.midpage.ai/document/felber-v-southern-minnesota-railway-co-7963903?utm_source=webapp" opinion_id="7963903">28 Minn. 156; Libby v. Mikelborg, Id. 38. When such costs are retaxed and allowed in the judgment, the plaintiff may avail himself of his remedy by the proper appeal. As the case now stands the order should be affirmed.

* G-ilflllan, C. J., because of illness, took no part in this case.