Scottish American Mortgage Co. v. Reeve

Bartholomew, J.

This case was before us at our October term, 1897. See 7 N. D. 99. We then affirmed the judgment appealed from. After the remittitur was sent down, the defendants moved in the District Court to set the judgment aside on the ground that the judgment was void, and the court without jurisdiction to enter the same. The judgment thus attacked was dated April 17, 1897, and the ground of the attack, brieflly stated, was the fact that on October 31, 1896, the court entered judgment in the case against these defendants; said defendants having entered no appearance and served no answer in the case. That subsequently, and after the expiration of the term at which such judgment was entered, and without notice to defendants, and on application of plaintiff, such judgment was set aside and canceled, and subsequently another judgment was entered; that being the judgment from which the former appeal was taken, and which the former appeal was taken, and which was affirmed by this court. The infirmity in this judgment, if any there was, existed prior to the former appeal, and appeared in the record that was brought to this court, because the record was substantially the same in that case as in this; but no objection such as is now urged was taken either in the trial court or on appeal, and, the judgment having been affirmed in this court, that is an end of all matters that were or might have been litigated in the case. All such matters become res adjudicata for the purposes of that case. Pollock v. Cohen, 32 Ohio St. 514; Zimmerman v. Turner, 24 Wis. 483; Crockett v. Gray, 31 Kan. 346, 2 Pac. 809; Damon v. De Bar, 94 Mich. 594, 54 N. W. Rep. 300. In holding on the former appeal that the judgment appealed from was a valid and proper judgment, we necessarily held that the court had jurisdiction to enter it. The question is no longer open in this case. We must not be understood as admitting that, if the points here urged had been urged on the former appeal, our decision would have been any different from what it was.

(75 N. W. Rep. 910.)

Respondent urges that this is a proper case for the addition by this court of a penaly to the judgment as punishment for purposely delaying the execution of the judgment. That is a matter resting in sound discretion. In this case the record shows that the property covered by the mortgage is ample security for the debt, and there is also an approved supersedeas bond in the case. Plaintiff cannot suffer. We are not warranted in adding any penalty.

The order appealed from is in all things affirmed.

All concur.