Prescott v. Brooks , 11 N.D. 93 ( 1903 )

Wallin, C. J.

(dissenting). In this action I concur in the conclusion of the majority of the court in dismissing the appeal without prejudice to another appeal, but am compelled respectfully to dissent from the views of the majority with respect to the grounds of dismissal. In my judgment the facts narrated in the majority opinion, ■as well as the issues actually tried and determined in the court below, called for and necessitated the entry of one indivisible judgment, which judgment, as I view the record, was actually entered by the trial court. True, the facts were such and the issues were so framed that the trial court was compelled, in deciding the case, to pronounce upon several' detached features, and this was done; but under the issues the crucial question was whether the second mortgage, when delivered, operated to pay the first mortgage. The case turned below upon that question, and, in my judgment, that is the question which must determine the ultimate disposition of the case. If I am correct in this, then there was but one question involved in the case, and that was single and indivisible, and hence the judgment of the trial court, which met and disposed of that question, was in its nature a single and indivisible judgment. Its various features were interdependent and indissoluble. Therefore, in appealing to this court, there was one, and but one, judgment to appeal from. Nevertheless, the notice of appeal shows on its face that the appellant ■sought to appeal, not from the whole judgment, but from only one part or feature of an indivisible judgment. For obvious reasons no such appeal is legally possible. Nor, under any system of appeals, ■either at law or in equity, whether new or old, whether in state courts -or in federal courts, would it be practicable to review an entire judgment were only a fragment of it is brought up to the reviewing tribunal. Where the appellate court sits only to review errors committed in the trial court, and to affirm, modify, or reverse the judgment entered below, it manifestly would be essential that the entire judgment, if indivisible, should be brought to the appellate court; and this reasoning applies with equal force where, as in this state, the appellate court sits in court cases to try the case anew upon the evidence and render judgment upon the merits.' Upon the facts of this case, therefore, the decision of the motion to dismiss the appeal ■could be securely placed upon the ground that the appellant has failed to bring up for review the entire judgment of the trial court. 'This ground is common ground, as between members of the court, and I confess that I am unable to discover any necessity for departing from such common ground and, by-a divided court, deciding the •motion to dismiss upon a practice question of great delicacy and •importance, which question is one which the majority declares was not, when the motion was originally presented to this court, “argued by counsel for either party.” But the majority say, “The question whether an appeal may or may not be taken from a part of a judgment is not involved, and any expression of opinion on that question would be both superfluous and valueless.” To the soundness of this proposition I cannot assent. I think the question is squarely involved, and is pertinent, from the view point of the majority, of the court. Moreover, I think the majority has practically ruled upon the question in this case. They say, in effect, that in no case tried under § 5630 can a part of a judgment, whether the same is divisible or not, be brought to this court for trial anew upon the merits. It must, I think, be apparent that if in a court case no trial on the merits can be had in this court, where an appeal is taken from a part of any judgment, that the right to take an appeal from a part is a barren right, and of no practical value whatever, as a means of retrying the facts and issues which resulted in the entry of any judgment which is appealed from only in part. From my point of view the majority opinion goes to the extent of emasculating the plain and positive provisions of section 5606, Rev. Codes 1899, regulating appeals to this court, which reads as follows: “An appeal must be taken by serving a notice in writing signed by the appellant or his attorney on the adverse party and filing the same in the office of the clerk of the court in which the judgment or order appealed from is entered, stating the appeal from the same and whether the appeal is from the whole or a part thereof and if from a part only, specifying the part appealed from.” This section prescribes the mode of taking appeals to this court, and none can be taken otherwise, and if the supreme court, under the guise of construction or interpretation, may nullify the language of the section which we have quoted, I know of no limitation which can be placed upon its authority which can prevent the annulment by construction of any or all the other language of the section. For my part I deny the existence of any such power in the supreme court, or in any court. In this matter I am convinced that the majority of the court has misapprehended the scope and object of section 5630. In my judgment that section, as originally enacted, or as amended, does not deal with the mode or manner of taking appeals to this court from judgments or orders entered in the district court. It contains no repealing words, and no rule of statutory construction is better settled than that holding that implied repeals are not favored, and are never permitted except in cases of a plain and irreconcilable repugnancy between two enactments. Nor does repugnancy ever exist where two statutes relate to different subjects. See section 138, Suth. St. Const. I maintain that the statute regulating appeals and section 5630 relate to different and dissimilar subjects. Section 5630, as its terms import, was enacted to introduce a new mode of trying court cases in the district courts and in the supreme court of this state. Under it both common-law and equity cases are triable to the court. The section was placed in an environment of legislation in which it would not fit, and for this reason, more than any other, it has proven to be a veritable Pandora’s box of perplexing difficulties with which bench and bar have long wrestled, but never until the present case has the writer even suspected that section 5630 operates to repeal an important section of another statute, — that regulating appeals, — to which it does not refer, and with which, in my opinion, it has nothing to do. It is further my opinion that the following language of the majority of the court is employed as a result of misapprehension. The majority say, “In reaching this conclusion, we are materially aided by the interpretation placed by this court upon prior statutes relating to trials de novo in this court.” I maintain that a careful perusal of the prior decisions of this court will fail to reveal any decision or holding to the effect that a judgment embracing divisible and independent parts cannot be brought to this court for the purpose of retrying one of such parts only. This question I insist is here passed upon for the first time by this court, and hence any general language used by this court in any of the cases cited should be confined to the facts and issues in the cases in which the language occurs. Finally, the rehearing opinion makes this concession in terms. The majority say, “This fact, coupled with the fact that the question had not been previously presented and passed upon by this court,” etc. See opinion. In my opinion the language of section 5630, which authorizes this court to “try the case anew and render final judgment therein,” when properly construed and made to harmonize with the statute regulating appeals, which statute remains intact, must be construed as meaning that a portion of a divisible judgment, which is controverted and appealed from, must be tried anew. To my mind it involves an absurdity to require suitors to relitigate a matter which the parties to the action are satisfied with and do not challenge by any appeal.

(90 N. W. Rep. 129.)