Work v. Northern Pacific Railroad

Harwood, J. It appears from the record on appeal in this case that the action was commenced on the twenty-third day of December, A. D. 1887, in “the District Court of the Third Judicial District of the Territory of Montana, sitting for the — 517 — .trial of causes arising under the Constitution and laws of the United States, at Bozeman, Mont.” The action was brought to recover damages for the alleged killing of two hundred and fifty and the injury of fifty head of sheep belonging to plaintiffs, by the alleged careless and negligent running of an engine against and upon said sheep. On the twenty-ninth day of May, 1889, the cause was tried in said District Court, sitting for the trial of causes arising under the Constitution and laws of the United States, and the jury impaneled therein returned a verdict in favor of the plaintiffs in the sum of twelve hundred dollars. The record of the trial and determination of the .action in said court, so far as determined by that court, is evidenced by certain record entries certified to this court in a supplemental transcript thereof, as follows: — “May term. Wednesday, May 29, 1889. Third day. Court opened pursuant to adjournment. Present: Honorable M. J. Liddell, judge; Geo. W. Irvin, Esq., U. S. marshal; T. A. Garrett, clerk. John F. Work and John F. Locke, plaintiffs, v. The Northern Pacific Railroad Company, defendant. 740. This cause coming on regularly for trial the plaintiffs appear by their attorney, Allan E. Joy, Esq., and the defendant by its attorneys, Messrs. O. F. Goddard and Charles S. Hartman, whereupon the following jury was duly sworn and impaneled to try the issues in said cause, to wit: A. Jones, J. A. L. Snyder, Geo. E. Stover, Wm. Blaiu, John Smith, Geo. L. Danford, T. H. Walters, David Simpson, W. W. Livingston, Joseph Clancy, Joseph Seright, L. J. Sypes — twelve good and .lawful men. Thereupon the plaintiffs proceeded to introduce their evidence, and there were sworn on their behalf J. F. Locke, Joseph Brinton, James Martin, Joseph Koruntz, and John F. Work, witnesses. And the plaintiffs having closed their evidence, there was sworn, on behalf of the defendant, J. S. Foley, witness. The defendant .at this time, and before the introduction of its evidence, and before said witness was sworn, filed a motion for judgment of nonsuit; and the jury having withdrawn, said motion was argued by counsel for both parties, and after due consideration it was ordered by the court that the motion for nonsuit be overruled. Thereupon the jury returned into court, and the evidence being closed, after argu — 518 — ment by counsel, tbe court charged the jury in writing, and' thereupon the jury retired to their room to consider of their verdict. The jury returned into open court, both parties being present by their counsel, and rendered the following verdict, to wit: ‘ John F. Work and John F. Locke, pl’ffs, v. The Northern Pacific Railroad Company, defendant. We, the jury, find for the plaintiffs in the sum of twelve hundred dollars. [Signed] G. R. Stover, Foreman/ — which said verdict the court ordered to be recorded. And after said verdict was recorded the same was read aloud to the jury by the clerk of said court,, and they were asked if that was their verdict, and made answer that it was. It was then ordered by the court that the jury be discharged from the case.” And the further record entry of said trial court is as follows: — “May term. Monday, June 24, 1889. Twenty-third day. Court met pursuant to adjournment. Present: Hon. M. J. Lid-dell, judge; D. C. Campbell, Asst. U. S. atty.; Geo. W. Irvin, U. S. marshal; T. A. Garrett, clerk. John F. Work and John F. Locke, plaintiffs. The Northern Pacific Railroad Company, defendant. No. 740. In this action, judgment is hereby entered in accordance with the verdict of the jury heretofore entered on the twenty-ninth day of May, A. D. 1889; and it is-ordered, adjudged, and decreed that the plaintiffs recover from the defendant the sum of twelve hundred dollars damages, together-with the costs of this action, taxed at the sum of $-. “M. J. Liddell, Judge.” The case remained in that condition until the State of Montana was created, and the functions of said trial court, ceased by operation of law. After the organization and admission of the State of Montana into the Union, the question as to what court succeeded to jurisdiction of this and some other cases pending in said trial court seems to have been a matter of .some uncertainty until the provisions of the act of Congress, commonly known as the “ Enabling, Act,” relating to this question, were construed. (Strasburger v. Beecher, 44 Fed. Rep. 209; Nickerson v. Crook, 45 Fed. Rep. 658; Johnson v. Bunkerhill & S. M. & C. Co. 46 Fed. Rep. 417.) It appears that after the creation of the State of Montana,, and the establishment of United States courts therein, as pro — 519 — vided in the act of Congress mentioned, the case at bar, and the records, papers, and other matters pertaining to it, were transferred to the United States Circuit Court in and for the District of Montana; and afterwards the same was returned to the State District Court of the Sixth Judicial District of Montana, within and for the county of Gallatin. No doubt this was done in consequence of the construction put upon section 23 of said act of Congress, entitled “An act to provide for the division of Dakota into two States; and to enable the people of North Dakota, South Dakota, Montana, and Washington to form constitutions and State governments, and to be admitted into the Union on an equal footing with the original States; and to make donations of public lands to such States,” approved February 22, 1889, in the cases cited supra. On the 9th of December, 1890, after the case was returned to the State court, a judgment nunc pro tuno was also rendered by that court in favor of plaintiffs and- against defendant on the same verdict above set out, as of the date of said verdict, May 29, 1889. This latter judgment appellant appealed from, by perfecting its appeal February 25, 1891, and it contends that said judgment is the only judgment ever entered in said action, while respondents contend that the entry of the latter judgment was a “useless formality,” and that the entry by the trial court made on the twenty-fourth day of June, 1889, as above recited, was a final judgment in said action, and that this appeal ought to be dismissed for the reason that the same was not taken within one year after the entry of such iudgment. (§ 421, Code Civ. Proc.) If the entry purporting to be a judgment made on the 24th of June, 1889, in the record of the trial court, amounts to a judgment in this case, then there is no doubt that this appeal is too late and should be dismissed on the determination of that fact. The practice in the trial and determination of actions at law in that department of the District Court of the Territory, exercising the jurisdiction of a Circuit or District Court of the United States, would, in general, be conformed to the practice provided for the territorial courts under the Code of Civil Procedure of the Territory of Montana. (§ 914, U. S. Rev. — 520 — Stats.) The Code of Civil Procedure of Montana (§ 304) provides that “the clerk shall keep among the records of court a book for the entry of judgments, to be called the 'judgment book/ in which each judgment shall be entered, and shall specify clearly the relief granted or other determination of the action.” Now the judgment of June 24,1889, “ specifies clearly the relief granted.” It is a clear, concise, and certain expression of the conclusion of law declared by the court as a determination of the action. (Black on Judgments, §§ 1 — 3.) The only objection that is urged as a reason why the entry of June 24, 1889, should not be held to be a judgment entered, is that it appears by the certificate of the clerk that such entry was made in a record of said court which is termed the “journal of proceedings,” whereas, section 304 of the Code of Civil Procedure provides that the judgment should be entered in a record of the court to be called the “judgment book.” The certificate of the clerk attached to the copy of the record of said judgment entered June 24, 1889, certifies that “the above and foregoing is a true and correct copy of the judgment entered in the above entitled cause, as the same appears on page 189, volume No. 5, journal of proceedings, District Court of the Third Judicial District of the Territory of Montana, sitting as a court for the trial and determination of causes arising under the Constitution and laws of the United States, as the same appears on said records now in my possession.” Whether another record book was kept by the clerk of said court entitled “judgment book,” or whether, if such record was kept, the entry of this judgment was or was not made therein, or whether the journal of proceedings was also known or called the “judgment book,” are questions upon which this court is not informed. But assuming that it was the practice of the District Court of the Territory of Montana, in and for said district, when exercising its jurisdiction ás a District or Circuit Court of the United States, to enter its judgments only in a book known as the “journal of proceedings,” we have not been cited to any authority for holding that a judgment so entered should be disregarded, especially where the question arises between the parties to the action, who are presumed to have knowledge of all the proceedings. While by the provisions of section 914 of the United States Revised Statutes — 521 — that court would conform generally to the practice provided for the territorial courts, “as near as may be,” still in many particulars such practice is not conformed to in every detail. (See cases cited under that section in Gould & Tucker’s Notes on the Eevised Statutes of U. S.) And if this was a question of practice pertaining to our own courts, or the District Court of the Territory of Montana, exercising its jurisdiction as such, and not as a United States Circuit or District Court, we think the entry of the judgment would be held sufficient as between the parties to the action, although such entry was made in a book designated “journal of proceedings” of the court in question instead of “judgment book.” This irregularity would not be sufficient to invalidate or impair the effect of the judgment as between the parties to the action. Such was the effect of the holding in Thompson v. Bickford, 19 Minn. 17. (See, also, Black on Judgments, § 111, and cases cited.) We hold that said record entry of June 24, 1889, was the entry of judgment in said action, so as to set running the time within which an appeal may be taken, and this appeal, which was not taken until more than one year had expired after said judgment was entered, is too late (§ 421, Code Civ. Proc.), and therefore must be dismissed. Wherefore, it is ordered that this appeal be dismissed at the «costs of the appellant* Dismissed. Blake, C. J., and De Witt, J., concur.