22 Mont. 107 | Mont. | 1899
This action was brought to determine the rights of the respective parties in the waters of Crow creek, and to quiet title to the same. In February, 1894, the trial court adopted the special findings of the jury in favor of plaintiff, but rendered judgment thereon dismissing the action, with costs. The plaintiff appealed from the judgment, and on July 15, 1895, this Court reversed the judgment appealed from, and remanded the cause, with directions to enter judgment in favor of plaintiff, determining his title to the use of 160 inches of the water, and perpetually enjoining defendants from interfering therewith; and, on rehearing, its judgment of July 15th was affirmed. (Kimpton v. Mining Co., 16 Mont. 379, 41 Pac. 137, and 42 Pac. 102.) On July 31, 1895, there was entered in the court below the final judgment for plaintiff, in accordance with the order of this Court. Thereafter defendants filed a paper designated “A Statement on Appeal,” which the court settled. From the judgment so entered on July 31, 1895, defendants prosecute the present appeal.
Plaintiff has moved that the statement on appeal be stricken from the transcript, upon the ground that there is no authority of law for filing the same. Prior to the taking effect of the Codes (July 1, 1895,) one of the means of preserving alleged errors of the trial courts was by statements on appeal. The Codes,' however, do not recognize or make provision for such method or proceeding for review on appeal of rulings or decisions of District Courts. It would seem that the motion to strike is well interposed, under Sections 3455, 3482 and 3483 of the Code of Civil Procedure, and 5182 of the Political Code, and the authority of Gassert v. Bogk, 7 Mont. 585, 19 Pac. 281, and Kelly v. Larkin, 47 Cal. 58, notwithstanding the fact that the trial was had in 1894; for the reason that the supposed statement on appeal was prepared and filed subsequently to the’repeal of the statute providing therefor. We are in-
It is deemed unnecessary, however, to decide the question raised by the motion, as the appeal must be dismissed because it is one which is, in effect, from the judgment of this Court. The decree was entered in obedience to, and in exact conformity with, the judgment and order of this Court. The District Court was commanded to enter judgment in favor of plaintiff. This involved the performance of a mere ministerial act and duty (McMillan v. Richards, 12 Cal. 467; Sieber v. Frink, 7 Colo. 148, 2 Pac. 901; Matthews v. Houghton., 11 Me. 377; Fish v. Emerson, 44 N. Y. 376), and, when our mandate was obeyed by the court below, the decree it caused to be entered was the judgment of this Court; and by that judgment the questions which did actually arise on the trial, and those which could have been presented, as well as the rights of the parties in the subject-matter of the suit, were finally determined. They became res judicata, and all that remained for the District Court to do do was to enter the judgment rendered by the Supreme Court. The rule, with its qualifications, is well expressed in Stewart v. Salamon, 97 U. S. 361, as follows: “An appeal will not be entertained by this court from a decree entered in the circuit or other inferior court, in exact accordance with our mandate upon a previous appeal. Such a decree, when entered, is in effect our decree, and the appeal would be from ourselves to ourselves. If such an appeal is taken, however, we will, upon the application of the appellee, examine the decree entered, and, if it conforms to the mandate, dismiss the case, with costs. If it does not, the case will be remanded, with appropriate directions for the correction of the error. The same rule applies to writs of error. This is not intended to interfere with any remedy the parties may have by mandamus. This is an appeal from a decree entered upon our mandate. No complaint is made as to its form, and it seems to be in all respects according to our directions. The effort of the appel
The appeal in the case at bar is from a judgment rendered by this Court and entered by the District Court, and for that reason it must be dismissed.
Dismissed.
