Witty v. Wells

By notice of appeal herein, appellant seeks to appeal from "the judgment entered on the 29th day of April, 1922, in favor of defendants in said action and against said plaintiff." No such judgment appears in the record, but we find a so-called "order" made on April 29, 1922, which is as follows:

"ORDER. "The above entitled matter came on for hearing on the 24th day of April, 1922, it being a day of the regular April, 1922, term of this Court. On paragraph Four (4) of the stipulation of counsel, filed in this action, after argument of counsel, the court took the matter under consideration and being advised in the premises finds that the defendants are entitled to such right of way across plaintiff's premises as designated on the plat herein filed, as may be necessary in order for their use and that in building and constructing said service ditch, said defendants may use from the premises of plaintiff, as aforesaid, sufficient dirt to construct and maintain the dyke required in the construction of said ditch. Said construction and maintenance, however, to be performed in a way and manner that will serve defendants' needs and do the least damage to plaintiff's premises.

"Done in open court this 29th day of April, 1922.

"WM. A. BABCOCK, District Judge."

We are of the opinion that the foregoing cannot be construed as a final judgment or order from which an appeal can be taken, within the provisions of C. S., sec. 7152.

The appeal should be dismissed, and it is so ordered. Costs are awarded to respondents.

McCarthy, C.J., and William A. Lee and Wm. E. Lee, JJ., and Brinck, District Judge, concur.