Citation Numbers： 26 N.D. 268, 144 N.W. 96
Judges： Beuoe, Bueke, Goss
Filed Date： 10/24/1913
Status： Precedential
Modified Date： 7/20/2022
This is an action in equity tried in the district court of Foster county before the Honorable E. T. Burke, presiding judge. Findings, conclusions, and order for judgment were signed by said district judge on December 29, 1910, during his term of office, and forthwith transmitted to the attorneys for plaintiff and appellant for filing and preparation of judgment to be entered, and who caused the same to be filed with the clerk of the district court of Foster county on January 24, 1911, some two weeks after said former district judge had qualified as and assumed the duties»of justice of this court. On January 25, 1911, the clerk entered judgment in the name of the former district judge pursuant to the findings, conclusions, and order for judgment as filed on January 24th, Judge Coffey, meanwhile, having qualified as judge of said district on January 7th. An appeal from said judgment was taken to this court and supersedeas bond filed. Pending the appeal a motion for vacation of the judgment was noticed but abandoned, but later another motion to vacate was heard September 1, 1911, and denied because of the pendency of the appeal. On November 14, 1911, said appellant procured its dismissal without prejudice to an appeal xipon the merits. Subsequently, and on March 29, 1912, the defendant again moved to vacate the judgment from which the appeal had formerly been pending, which motion was granted and plaintiff appeals.
The findings, conclusions, and order for judgment were signed, and had they been filed before the expiration of the term of office of the
Secs. 7039 and 7040, Rev. Codes 1905, make the findings, conclusions, and order for judgment thereon the decision of the court. That findings and conclusions are necessary, and that the.statutes requiring them are mandatory, see Gull River Lumber Co. v. School Dist. 1 N. D. 500, 48 N. W. 427; Gaar, S. & Co. v. Spaulding, 2 N. D. 414, 51 N. W. 867; Prondzinski v. Garbutt, 9 N. D. 239, 83 N. W. 23; and a late decision in South Dakota to the same effect in Kierbow v. Young, 21 S. D. 180, 110 N. W. 116.
But appellant contends that though findings, conclusions, and order for judgment are necessary, yet the statute does not require that the same necessarily be filed in order to be valid; and that the statute requiring the filing within sixty days after the 'cause has been submitted for decision is a directory provision, aimed more particularly at the expediting of court business in compelling judges to do their duty, and should not be interpreted so as to invalidate findings and conclusions properly found but filed as here after the termination of the office of the particular judge.
Time periods within which acts are required to be done are usually, in the absence of plain statutory commands to the contrary, construed as directory, and such undoubtedly is the construction to be given the time limit within which our statute requires a décision to be made. 8 Enc. Pl. & Pr. 949; Hayne, New Trials & App. § 246 and cases there cited. But the requirement of §§ 7039 and 7040, as to filing, concerns the manner of the pronouncing of the final decision of the court. Every judgment embodies two essentials: (1) The rendition of the judgment, and (2) the entry thereof after rendition. The first is the judicial act of the judge, the latter the clerical act of a ministerial officer, the clerk. Sec. 7040 explicitly provides that “in giving the decision the facts found and the conclusions must be separately stated. Judgment upon the decision must be entered accordingly.” The statute here has reference to these separate acts of rendition and entry of judgment, as does § 7039, more particularly under investigation, reading: “And upon the feial of any question or issue of fact by the court, its decision
And an examination of our statutes is convincing that this statutory provision as to filing is a necessary requisite to a decision, inasmuch as it was intended to be a limitation upon the power of the trial court, and was never intended to be other than, mandatory. Secs. 267-269 of the Code of Civil Procedure of 1877 of Dakota territory are substantially our present Code provisions, §§ 7041, 7040, and 7039, respectively, and appear there logically in reverse order to their statement in art. 6 of the Code of Civil Procedure of 1905. Sec. 267 of the Code of Civil Procedure of 1877 is identical'with § 7040, Code of 1905, and § 268 of that early Code is identical with § 7041, Code of 1905, except that the third method provided in § 268, that findings might be waived “by oral consent in open court entered in the minutes,” was repealed by chap. 25 of the Session Laws of 1887, which also made an important amendment to § 266, which before amendment read, “Upon
And our conclusions are but those of California under §§ 632-634 of its Code of Civil Procedure of 1877, that were identical, even to sectional division and punctuation, with §§ 266 — 268, respectively, of the •Revised Codes of Dakota territory of 1877. Such early statutory provisions of California, we assume, came from still earlier practice provisions. See Russell v. Armador, 2 Cal. 305, purporting to be based upon “§ 180, chap. 5, of the practice act, (which) prescribes, that ‘upon the trial of an issue of fact by the court its decisions shall be given in writing and filed with the clerk within ten days after the trial took place. In giving the decision the facts found and the conclusions of law shall be separately stated.’ ” And “we are of opinion that this law is not merely directory, and we have no right to destroy or impair its efficacy; it is intended by it, that the decision of the court shall be the basis of the judgment in the same manner as the verdict of a jury. And it follows that without such decision the judgment cannot stand.” “Upon the trial of an issue of fact by the court the statement of facts must be made out and filed as required by the 180th section of the practice act.” This decision was in 1852. See also Vermule v. Shaw, 4 Cal. 214; Hastings v. Hastings, 31 Cal. 95; Warring v. Freear, 64 Cal. 54, 28 Pac. 115; Polhemus v. Carpenter, 42 Cal. 375; Broder v. Conklin, 98 Cal. 360, 33 Pac. 211; and Connolly v. Ashworth, 98 Cal. 205, 33 Pac. 60. If the statute was taken from California, as this
We conclude that the filing of findings, conclusions, and order for judgment is a necessary part, and the final act in the rendition of a decision. By filing we do not mean the affixing of filing marks by the clerk, a ministerial duty, but the delivery of the decision to the clerk
But it may be well to here briefly analyze the cases that at first blush might seem to support the contention of the appellant. It is noticeable that these citations are from states having no statute purporting to make the filing a part of the rendition of a decision. We observe, also, that most of these decisions turn upon a construction given to the stipulation governing the submission of the cause for decision; and that the leading Iowa case, Babcock v. Wolf, 70 Iowa, 676, 28 N. W. 490, cited as supporting appellants’ contentions, and also cited in 23 Cyc. 839, to the same effect, actually recognizes the contrary to be the general rule. The following from 70 Iowa, at page 679, 28 N. W. at page 491, is all of the majority opinion of the court on the question:
“It is urged that the decision was void because it was made after the expiration of the term of office of the judge. The argument is that the decision made and reduced to writing at Afton before the expiration of the term of office was not complete, and no decision could' be made until the writing was actually filed and deposited in the clerk’s office. In determining this question, regard must be had to*279 tbe fact that the case was to be decided in vacation. The judge had all of the testimony and papers in the case at his home at Afton. As we understand it they were sent to the clerk in the same package with his decision. It was not to be expected that he would make his decision at Clarinda [the county seat] in vacation, and with his own hands deposit it with the clerk. The expectation must have been that he would make his decision at his own home, where the evidence and files in the case were. But wherever made, there must be some means of transmitting it to the clerk at Clarinda. Now we think the decision was made when it ivas deposited in the express office at Afton. Under the agreement of the parties, it was as complete then as if there had been no agreement and tke judge had entered a decision in his minutes in open court, because the parties agreed that the decision was not to be made at Clarinda. ... It is argued that the decision was subject to recall at any time until it was filed, and for this reason the filing or depositing with the cleric was necessary to a complete decision. But it was not recalled, and this fact shows, beyond question, that it was a deliberate decision made and completed before the expiration of the term of office. A court has power to correct its records during the term; but because this power exists, and because its exercise may materially change decisions made during the term, is no reason why judgments are not final and binding upon the parties from the day in the term on which they are rendered.”
In the opinion of the two justices dissenting, we find the following:
“In my judgment the decision made by a judge in a cause which has been submitted to be determined in vacation is of no force or effect until it is deposited in the office of the clerk. Until that is done, it is subject to recall by the judge. But in this case the decision was not filed until after the expiration of Judge Gregory’s term of office. It is a judgment from that date; but at the time he was not a judge, and his decision is of no more force and effect than- that of any other citizen would have been. The majority say that it is binding as a judgment from the time it ivas deposited with the express company to be transmitted to the clerk. I think that position is not sound. ... It was forwarded by the express company after the term of office of Judge Gregory had expired; but the majority say that the presumption should be indulged that he did not assume to perform the duties of the office*280 after the expiration of his term had expired. But I do not see upon what ground such presumption should be indulged. If we are to indulge in presumptions, it seems to me that we should presume, from our knowledge of the manner in which business is transacted, that the express company forwarded the package on the day on which it received it.”
And as bearing on the above opinions of the court we quote the facts of the case as given in the opinion, as follows:
“The term of Judge Gregory expired on the 31st day of December, 1884. On the 29th of that month he prepared a written decision of the case at his home at Afton, by which he ordered that the petition be dismissed. This decision was deposited in the office of the American Express Company at Afton, directed to the cleric of the circuit court at Clarinda. The package was billed from the office at Afton on the 1st day of January, 1885, and was received by the clerk of the court and filed on the next day. At what time it was delivered to the express company at Afton does not appear. We think it is fair to presume, however, that it was deposited in the express office at Afton before the expiration of the term of office of the judge. Any other presumption would, in effect, be holding that the act of making the decision was a wrongful usurpation of judicial power, and the law does not presume that persons do wrongful acts.” (The italics in the foregoing are ours.)
The above quotations emphasize the importance placed upon the presumed fact, that the judge delivered his decision to the express company for transmission to the clerk for filing before the expiration of his term of office. In effect the court makes such delivery to the express company a filing with the clerk, as though the express company was the agent of the clerk in the transmission of the record and decision to the clerk. This appears from the statement in the opinion, that “now we think the 'decision was made when it was deposited in the express, office at Afton. Under the agreement of the parties it was as complete then as if there had been no agreement and the judge had entered a decision in his minutes in open court, because the parties agreed that the decision was not to be made at Clarinda.” Thus, the decision is made, to turn upon the effect of the stipulation for submission of the cause, and the fact of the delivery to the express office under the presumption
In Shenandoah Nat. Bank v. Read, 86 Iowa, 136, 53 N. W. 96, between different parties, an attempt was made to collaterally assail the holding in Babcock v. Wolf, the court adhering to its former, decision, and stating: “For the reasons given in that opinion we hold the decree to be valid.” The earlier case of Tracy v. Beeson, 47 Iowa, 155, would be authority had these findings, conclusions, and order, during the tenure of office of the trial judge, been transmitted to the clerk, who had on their receipt, during term time, made a notation on his minutes of the decision but failed to file the decision, and turned the same over to his successor without the indorsement of filing thereon. The court held that the succeeding trial judge could make an order directing the filing nunc pro tunc to supply the omission of the ministerial duty of the clerk of placing the filing marks upon the papers. And in considering the Iowa cases we must remember that under Houston v. Trimble, 3 G. Greene, 574, a decision entered in the minutes constitutes a sufficient decision of a cause, and that written findings are unnecessary unless requested; which on the contrary, under our statute, written findings, conclusions, and order for judgment have been held, since Gull River Lumber Co. v. School Dist. 1 N. D. 500, 48 N. W. 427, and Gaar, S. & Co. v. Spaulding, 2 N. D. 414, 51 N. W. 867, and Prondzinski v. Garbutt, 9 N. D. 239, 83 N. W. 23, to be mandatory. McDowell v. McDowell, 92 N. C. 227, is in facts and law parallel to the case of Tracy v. Beeson, and to the effect that' an order nunc pro tunc may be issued to cure the record concerning the performance of a ministerial act, when the act itself has in proper season been actually performed, that the record may truthfully reflect the fact that the decision was rendered in time. Hamill v. Gibson, 61 Ala. 261, is scarcely authority for appellant’s contention, inasmuch as that decision is made to turn upon the force given to a stipulation, in effect, that the “decision be made in eight weeks and entered up as of the
“The limitation of time [by stipulation] within which the decision was to be made was doubtless introduced for the purpose of obtaining a judgment at as early a period as was supposed practicable, and quieting the litigation; but it extends only to the time within which judicial power could be exercised, and does not impose as a condition to the validity of its exercise that the judgment should be filed with the clerk of the court to be entered of record within the time' mentioned. The terms of the submission were satisfied when the judge, within eight weeks, reduced his decision and judgment to writing, so that it could at a future date be entered of record.” This was apparently under the common-law practice concerning the rendition of judgments during the term, and was not said with reference to any statute such as ours, the construction of which is the all-important question. Without this mandatory statute, the case at bar might assume an entirely different aspect. A review of authorities will not be complete without mention of Storrie v. Shaw, — Tex. —, 75 S. W. 20, 76 S. W. 596, wherein it is held that, after the submission of a cause to a court during the term of office of the trial judge, the right to formulate and file a decision in the cause survives the expiration of his term, as does, under one set of conflicting authorities, the right of the trial judge to settle a statement of the case after the expiration of his term of office. The court there calls attention to the conflict of authority on the latter question, but concludes that, inasmuch as in that state it is held that at common law the right to so settle a statement after the expiration of the term survives in the trial judge, it would hold, as it did, that the right to render a decision after the expiration of the term was analogous thereto, and hence validated such a decision. But we can find no further authority so holding, and the reason for the holding wholly disappears when we find the analogous right to settle a statement to be one here conferred by statute, without which statute the right would not exist, otherwise the legislature must be convicted of an idle act in the legislation granting the right. Especially is this so when we find that a square conflict*283 of authority existed in common law as to whether such right to settle a statement so survives, and that the legislature has, by § 7061, Rev. Codes 1905, declared in favor of its survival, and authorized a judge to “settle and sign a statement of the case after as well as before he ceases to be such judge.” The source of this statute is, like the provisions concerning the findings, conclusions, and order for judgment, in the Revised Codes of Dakota territory of 1877, to be found therein as § 284 of the Code of Civil Procedure. Hence Storrie v. Shaw cannot be considered authority, as the basic grounds for that decision are negatived by the existence of § 7061, Rev. Codes 1905. At 23 Cyc. 839, it is stated that “if a judgment or decree was actually rendered or settled before the expiration of the term of office of the judge trying the case, it is generally held to be immaterial that it was not filed or entered of record until afterwards; the judicial act being the rendition of the judgment, and its entry being merely ministerial.” But the cases cited to sustain the conclusion drawn are those above analyzed, and cited as contra the California, Illinois, and Mississippi decisions. And the general statement of the learned author was evidently made without reference to statutory requirements concerning filing, as appears from the fact that the cases cited are decisions in which statutes prescribing filing were not under consideration.
We may add that our conclusions are but in harmony with our holdings upon analogous statutes, §§ 7078, 7079, Rev. Codes 1905, held mandatory, and requiring the entry of record of the judgment by the clerk to constitute, for all purposes, a judgment. Re Weber, 4 N. D. 119, 28 L.R.A. 621, 59 N. W. 523; Cameron v. Great Northern R. Co. 8 N. D. 124, 77 N. W. 1016, 5 Am. Neg. Rep. 454; McTavish v. Great Northern R. Co. 8 N. D. 333, 79 N. W. 443; Amundson v. Wilson, 11 N. D. 193-195, 91 N. W. 37; Hagler v. Kelly, 14 N. D. 218, 103 N. W. 629; Re Lemery, 15 N. D. 312, 107 N. W. 365; Dibble v. Hanson, 17 N. D. 21, 114 N. W. 371, 16 Ann. Cas. 1210; Ottow v. Friese, 20 N. D. 86, 126 N. W. 503; Movius v. Propper, 23 N. D. 457, 136 N. W. 942. In the above cases latitude will be found as to the form of the instrument constituting the judgment entered, but none as to the mandatory requirement of the statute that it shall be entered of record to constitute a judgment. The legislative scheme provides for absolute verity in judgments and the record proof thereof by mandatory
Appellant also invokes § 6886, Kev. Codes 1905, to the effect that the court shall disregard errors not affecting the substantial rights of the parties. This on the theory that the failure to file was a mere technicality or trivial defect. To this we cannot agree without holding mandatory statutes to be technical, trivial, and unnecessary. This was for legislative determination, and their mandate is not for us to ignore.
The order vacating the judgment should be, and it is accordingly, affirmed, respondent to recover costs on appeal.