Van Vlissingen v. Oliver

START, C. J. Action of forcible entry and unlawful detainer, brought in justice court. The allegations of the complaint were to the effect that the plaintiff was the owner of the lot in question and entitled to the possession thereof, but that the defendants unlawfully detained possession thereof. The answer admitted that the plaintiff was the owner of the lot, denied the other alegations of the complaint, and contained allegations to the effect that the defendants were lawfully in possession of [238] the lot and had the right to continue therein by virtue of an agreement with the plaintiff. When the case came on for hearing, and before the trial thereof, the plaintiff’s attorney made and filed his affidavit to the effect that he believed that from prejudice and bias the justice would not decide impartially in the matter, and moved the justice to transfer the action to another justice for hearing and determination. The justice denied the motion and refused to transfer the action,, to which ruling the plaintiff excepted, and then withdrew from a trial of the case. Thereupon the defendants moved for judgment of dismissal and their costs, which was granted. The plaintiff appealed from the judgment of the justice court on questions of law and fact to the district court of the county of Clay. The district court, on motion of the defendants, dismissed the appeal, and from the judgment of that court, dismissing the appeal and for costs, the plaintiff appealed to this court. The record presents for our decision the sole question whether or not the judgment of the justice was appealable. Whether or not the justice erred in refusing to transfer the action to another justice is not relevant to such question, for whether the judgment of the justice was appealable or not depends upon its nature; that is, was it final, within the meaning of the rule that an appeal only lies in actions of forcible entry and unlawful detainer from a final judgment? Gray v. Hurley, 28 Minn. 388, 10 N. W. 417. The right of appeal in actions of this kind is given by section 4047, R. L. 1905, and not by section 3981 thereof. The appeal, however, is to be taken and prosecuted in the same manner as in other cases triable before justices of the peace, except as to the appeal bond. This conclusion clearly follows from the history of the statutes. See R. L. 1851, p. 315, § 123;. Id. p. 442, § 17; G. S. 1866, p. 435, § 103; Id. p. 573, § 13. If, then, the order appealed from was a final judgment, tbe appeal was properly taken on questions of law and fact, and it became the duty of the district court to hear and determine the action in the same manner as if it had been originally commenced therein. The argument of counsel for defendants, in support of their claim that the judgment is not appealable, is to the effect that the only final judgment which can be rendered in an action of forcible entry and' unlawful detainer is either one in favor of the plaintiff, that he have [239] restitution of the premises and costs, or one. in favor of the defendant for his costs upon a finding or verdict of not guilty. R. R. 1905, § 4044. -And, further, that, “to make a judgment final it must be a complete disposition of the matters in controversy, that is, it must be such a judgment as would be res ad judicata in another action involving the same subject matter.” The section of the statute relied on deals only with the judgment to be entered in case there is a trial on the merits of the action in justice court, and it is in no manner inconsistent with the entry of a judgment, in cases where there is no hearing on the merits, “as in other civil actions in a justice’s court.” R. L. 1905, § 4042. Whether the defendants would have been entitled to have proceeded and proved the allegations of their answer, and secured a judgment upon the merits, when the plaintiff withdrew, not her action, but from a trial thereof, we need not determine; for they elected to move for and to take a judgment of dismissal and costs. Such a judgment was a final judgment, and appealable, because it terminated the particular action. It is not necessary that it should be on the merits and preclude the parties from bringing another action. Thorp v. Lorenz, 34 Minn. 350, 25 N. W. 712; Steinam v. Schulte, 83 Wis. 567, 53 N. W. 844; Dunnell, Minn. Pr. § 1722; 2 Enc. Pl. & Pr. 103; 2 Cyc. 595. Judgment reversed and case remanded, with direction to the district court to entertain the appeal.