Hovey v. Northern Pacific Railway Co.

MR. JUSTICE HOLLOWAY delivered the opinion of the court. In October, 1906, L. L. Hovey commenced an action in the district court of Missoula county to recover damages from the Northern Pacific Railway Company. Issues were joined, a trial was had, and on March 5, 1907, the jury returned a general verdict in favor of the defendant. The defendant failed to have a judgment entered on the verdict, and on July 24, 1908, a motion was made by counsel for plaintiff to dismiss the action upon the ground that the defendant had neglected for more than sis months after the rendition of the verdict to demand and. have entered a judgment in its favor. The record then recites “that thereafter, and on August 14, 1908, the court * * * made its order that said cause be dismissed, which order was in words and figures as follows:'* * * * A motion to dismiss this action having been argued and submitted on the eighth day of August, 1908, and it appearing to the court that the defendant, the party entitled to judgment, has for more than sis months after verdict, neglected to demand and have the same entered, it is hereby ordered that said action be dismissed.’ ” The notice of appeal to this court is as follows: “To L. L. Hovey, the above-named plaintiff, and to Messrs. Hall & Patterson, his Attorneys: You and each of you will please take notice that the defendant in the above-entitled action hereby appeals to the Supreme Court of the state of Montana from that certain judgment made and entered in the above-entitled action, on the 14th day of August, 1908, dismissing said action.” We have searched the record in vain for any judgment. The order dismissing the case is not a final judgment. (Butte & Boston Con. Min. Co. v. Montana Ore Pur. Co., 27 Mont. 152, 69 Pac. 714; Palmer v. Spaulding, 34 Mont. 1, 85 Pac. 369.) Nor is it one of the orders enumerated in section 7098, Revised Codes, from which an appeal may be taken. For the reason that this court has not jurisdiction to consider this appeal upon the merits, the appeal is dismissed. Dismissed. Mr. Chief Justice Brantly and Mr. Justice Smith concur.