193 P. 532 | Mont. | 1920
delivered the opinion of the court.
Consolidated appeals, one being from a judgment of the district court of Blaine county dismissing plaintiff’s action because of its failure and neglect to procure the entry of a judgment in its favor within the six-months period prescribed by subdivision 6 of section 6714 of the Revised Codes, and the other from an order refusing to set aside said judgment.
Upon receipt of the findings of fact and conclusions of law, prepared by the Honorable John A. Matthews, the presiding judge, the clerk of the district court, without express direction or pronouncement by the court, on request of plaintiff’s attorneys, filed and entered what purported to be a final judgment of foreclosure of mortgages covering the property described in the pleadings. The action of the clerk in proceeding further than the filing of the findings was declared a nullity. (State ex rel. Reser v. District Court, 53 Mont. 235, 163 Pac. 1149.) On April 9, 1917, after the decision of this court, the plaintiff gave notice to defendants that on May 8, 1917, it would move that judgment be entered nunc pro tuno as of July 12, 1916, the day upon which the clerk of the court undertook to enter judgment in the ease. The Honorable W. B. Rhoades, the judge of that district, because of the fact that Judge Matthews had tried the cause and had transmitted to the clerk his findings of fact and conclusions of law, declined to entertain the motion. Later, on the sixteenth day of June, 1917, the attorneys -for the plaintiff served upon the defendants and their counsel a notice that it would, on July 20, 1917, move the court and Honorable John A. Matthews that the findings made by him and filed be ordered refiled as of the date of the,filing thereon, to-wit, July 8, 1916, and that judgment be signed and filed in conformity with such
When the findings of fact and conclusions of law prepared
“Judgments, like the causes of action from which they spring, are either at law or in equity—the latter, for purpose of instant distinction, being commonly termed ‘decrees,’ and between the two classes great and fundamental differences exist. A judgment at law is absolute, inflexible, expressive of the invariable rules of law applicable to the established facts in issue, taking no note of the situation of the parties or the means of enforcing the liability declared by it. A decree, on the other hand, is seldom predetermined as to its terms, by the general decision for or against the plaintiff or the defendant; it stands upon the particular merits of the controversy as they impress themselves upon the conscience of the chancellor, guided by principles broader than those of the law; it is the decision of the man who frames it as the interpreter of the moral standard which equity sets up; it is adjustable to all the exigencies of the litigation and to all the degrees of right or merit by which the parties may be distinguished, and it may, as often happens, contain specific directions for carrying out its purposes, provisions fixing the status of the parties, or prescriptions touching their course of conduct. (Freeman on Judgments, see. 9; Black on Judgments, see. 1; Broder v. Conklin, 98 Cal. 360, 364, 33 Pac. 211.) The application of these distinctions and their consequences are^ made manifest by the circumstances of this case. No such decree as the one before us was commanded by the finding in point of fact or followed from them as a necessary inference.”
In the recent case of McIntyre v. Northern Pac. Ry. Co.,
While in this case the court fixed the status of the parties
From a reading of the statute, it is manifest that its purpose is to bring an end to litigation by compelling the prevailing party to have judgment entered; and, the more effectually to impel that end, dismissal of the action is visited upon the successful party if he permits six months to pass between the rendition and the entry of the judgment in disregard of its provisions. Until the time limit between the two distinct and dissimilar acts has passed, the running of the statute has not commenced, and the successful party cannot be charged with the neglect the statute punishes. Forfeitures are not favored, unless by a strict application of the statute justice
The judgment and order are therefore reversed, with directions to the district court to render and have judgment entered nunc pro tunc in accordance with the motion of the plaintiff in that behalf.
Reversed.