42 Minn. 179 | Minn. | 1889
The error assigned is, in substance, that the judgment appealed from is unauthorized by the verdict; that in fact the verdict is insufficient to authorize any judgment. The judgment was entered on the verdict by the clerk, on motion of plaintiff’s attorneys without any order or direction of the court. No motion for a new trial, nor any application to have the judgment corrected or vacated, was ever made to the court below. From Eaton v. Caldwell, 3 Minn. 80, (134,) down to Oldenberg v. Devine, 40 Minn. 409, (42 N. W. Rep. 88,) and Lundberg v. Single Men’s Endowment Ass’n, 41 Minn. 508, (43 N. W. Rep. 394,) we have invariably held that, where a party enters a judgment not warranted by the verdict, the proper remedy is by application to the court in which it is entered to correct or vacate the judgment, and that, unless the authority of that court has been thus invoked, we will not consider the question on appeal from the judgment. Therefore the question whether this judgment is authorized by the verdict cannot be considered on this appeal. The defendant must first apply to the district court for relief.
The point as to the $75 attorney’s fees included in the judgment seems to be disposed of by the amended return, which shows that it was allowed by order of the court pursuant to Gen. St. 1878, c. 34, § 36, and there is nothing in the record to show that it was made esc parte.
Judgment affirmed.