Duffield v. Ohnewein

BUDGE, J. Amotion has been made to dismiss this appeal on the ground that the order appealed from is neither an appealable order nor a final judgment. On June 13, 1919, the court ordered judgment for respondent on confession of appellant. On September 17, 1919, appellant served on respondent notice of motion to set aside the latter order, ‘ ‘ and for such other relief as may be proper. ’ ’ After the service of this notice and before the motion came on for hearing, a formal judgment was entered in favor of respondent, September 20, 1919, pursuant to the order theretofore entered in the minutes. The notice of motion was not filed until October 3, 1919, the day on which the motion came on for hearing, at which time [733] appellant filed in addition his motion to vacate and set aside the order of June 13, 1919, “and for such other relief as may be proper, including the vacating and setting aside of all subsequent proceedings. ’ ’ No objection appears to have been interposed to the enlargement of the terms of the motion. On October 11, 1919, the court made the following ruling upon the motion: “It is hereby ordered that the defendant’s motion to set aside the order for judgment is denied and overruled.” • The notice of appeal contains the following language: “ .... appeals .... from that certain order herein made and rendered .... on October 11, 1919, overruling and denying the motion of the defendant to vacate and set aside a judgment rendered herein dated September 16, 1919, .... based upon a certain order dated June 13, 1919, and from the whole of said judgment and order.” While the order designated as appealed from in terms merely overrules the motion to set aside the order for judgment, it is apparent, we think, that the trial court intended thereby to make final disposition of the entire motion then pending before it, and that the particular words used in the order are merely intended to describe that motion. It will be remembered that the motion was to affect not only the order for judgment, but all subsequent proceedings, which would clearly include the formal judgment entered subsequent to the order and prior to the making of‘ the motion, viz., September 20, 1919. It plainly appears, therefore, that by its order of October 11, 1919, the court refused to vacate and set aside the formal judgment. An order refusing to set aside a judgment is a special order made after final judgment and is appealable under the provisions of C. S., sec. 7152, subd. 2. (Oliver v. Kootenai County, 13 Ida. 281, 90 Pac. 107; Shumake v. Shumake, 17 Ida. 649, 107 Pac. 42; 3 C. J. 523 and 524, note 17.) The motion is denied. Morgan, C. J., and Rice, J., concur.