Hazard v. McAndrews

Per Curiam.

Upon the trial below the following order was made and entered:

“ This cause called regularly for trial, both parties appearing by their respective counsel, the following jurors are duly impanelled and sworn to try the issues joined herein, to-wit: F. A. Iverson, R. S. Robinson, R. R. Starr, E. Jones, George Hooker, G. Edenholm, J. Sander-son, A. A. Osborn, John Hink, B. F. Leed, D. K. Sickles, J. F. Terrice.

“ Trial proceeds by the examination of witnesses sworn and documentary evidence introduced on behalf of the plaintiff. Defendant’s motion for non-suit is overruled. Exceptions allowed. "Witnesses are sworn and documentary evidence introduced on behalf of the defendant. "Whereupon defendant’s challenge to the sufficiency of the evidence is granted. Exception allowed. "Whereupon the jury is discharged from further consideration of this cause.

“ Dated Wednesday, March 4th, 1896.

“It. Osbobn, Judge.”

FTo formal judgment was entered thereon, and on the 19th day of January, 1897, Judge Osbobn having been succeeded by Judge Benson, the respondent moved the latter for an order directing the entry of such judgment, which was granted and judgment signed by Judge Benson, and formally entered on February 6, 1897.

Thereafter respondent moved the court to set aside the judgment and for a new trial for the reason that Judge Benson was without jurisdiction to render or sign the same. This latter motion coming on to he heard on the 6th day of March, 1897, was granted. The appeal is from that order.

It is conceded that the order setting aside the judgment was granted for the sole reason that Judge Benson considered he was without jurisdiction to- sign or enter the judgment referred to.

The order made by Judge Osbobn on the trial of the cause disposed of all of the issues as effectually as a verdict of a jury, and the judgment thereafter signed by his successor, Judge Benson, was a purely formal judgment, not involving the exercise of any discretion.

Subdivision 2, sec. 1, ch. 39, Laws 1895, p. 63 (Bal. Code, § 4697), cited and relied upon by respondent’s counsel is not applicable to the case here. That provision has no application to a case where hut one decision or judgment can he made.

The order setting aside and vacating the judgment must he reversed.