Ellis v. George

Biedzell, J. The defendant Cunningham alone appeals from the [414] order above referred to, and has made certain specifications of error. The respondent, however, who has not procured the entry of any new judgment and has taken no appeal, suggests to this court a doubt as to whether the order is appealable; but he asks that the case be reviewed and thus obviate the necessity of a second review upon a subsequent appeal from the judgment by the plaintiff. For this reason no objection is made that the order is not appealable. We know of no procedure according to which this court can try a case de novo where there is no appeal from the judgment. Section 7846, Compiled Laws of 1913, provides for a trial de novo only where there is an appeal from a judgment in the action. It has long been the settled law of this jurisdiction that a mere order for judgment is not appealable. Persons v. Simons, 1 N. D. 243, 46 N. W. 969; Re Eaton, 7 N. D. 273, 74 N. W. 870. It is not such an order as to both determine the action in effect and to prevent a judgment from which an appeal might be taken, within subdivision 1 of § 7841, Compiled Laws of 1913. In fact, it is but preliminary to the entry of a judgment from which an appeal might be taken. Thus, in so far as the order amounts to an order for judgment, it is not appeal-able and an appeal from it does not properly bring to this court any matter for review. If the order appealed from amounted to no more than an order for judgment, it would be the duty of this court to decline to consider the appeal even though the respondent should not raise the objection. There would be an absence of jurisdiction to affect the judgment below. See Turner v. Crumpton, 25 N. D. 134, 141 N. W. 209, and cases cited. The order, however, is more than an order for judgment. It vacates the judgment previously entered as well as fixes the terms of the new judgment to be entered. In so far as the order appealed from vacates the judgment it is clearly appealable. Weber v. Tschetter, 1 S. D. 205, 46 N. W. 201. It is entered pursuant to summary application, and affects the substantial right in an action after judgment within subdivision 2 of § 7841, which specifies the orders reviewable. But being without power or authority to try this case de novo, and having no jurisdiction over any judgment previously entered in the district court, this court cannot, on this appeal, direct the entry of any judgment affecting the merits, for the review is necessarily limited to that [415] portion of the order which vacates the judgment. However, since counsel for the respondent has specifically requested the court to examine the merits of the case, and inasmuch as the consideration of the appeal from that portion of the order which is appealable has necessitated a careful perusal of the record, we feel warranted in saying that the judgment, as modified, gives to the respondent all that he is entitled to receive. It seems to be clear that. Cunningham purchased without notice of Ellis’s transaction, and that Ellis never, in fact, closed his deal until he knew of Cunningham’s purchase. The appellant has attacked the order appealed from both upon the ground that the court lacked jurisdiction to enter it and upon the further ground that the evidence does not support the modifications made in the findings and conclusions. It will be noted, however, that the modifications in no way affect the substantial rights of Cunningham, the appellant. They only substitute Ellis for George or the Pacific Silk Company as the recipient of the purchase price which Cunningham agreed to pay and which was deposited in the bank to be turned over on completion of the title. The record fails to show wherein Cunningham is in any way prejudiced by the modification designed only to protect the right of Ellis as against the former owners of the property. Clearly they have not the right to be paid twice over for this property, — once by Ellis and then again by Cunningham, — and the fact that no one appeals from the order on behalf of the former owner or owners is a concession by them that the order is just. At any rate, so far as Cunningham is concerned, the modification does not affect the merits of the judgment, as he is given every right that was secured to him by the original judgment. It only affects the method of carrying out that judgment. See Tyler v. Shea, 4 N. D. 377, 50 Am. St. Rep. 660, 61 N. W. 468; Barnes v. Hulet, 29 N. D. 136, 150 N. W. 562. Being of the opinion that under the facts disclosed by this record the appellant is not adversely affected by the order, is is unnecessary to consider the objections urged. The order appealed from is affirmed.