Work v. Northern Pacific Railroad

ON REHEARING.

Harwood, J.

Motion for rehearing of this action has been filed and carefully considered. Among the grounds upon which rehearing is asked, appellant urges that if the entry of June 24, 1889, amounts to entry of judgment in said action, as held by this court, then it follows, considering the entry of the judgment upon the same verdict by the State court, that two judgments have been entered against appellant for the recovery of twelve hundred dollars on one and the same cause of action and verdict. And appellant complains that having appealed from the latter entry of the judgment on said verdict by the State court by the determination of this appeal, appel*522lant is turned away with two judgments standing against it, one of which must be unauthorized and erroneous.

This feature of the case was in no way suggested on the hearing of the appeal, nor was this court asked to make any order touching that matter. The point, however, was not overlooked, but on the contrary was considered; and our view of it was then, and still is, that it would be a matter of supererogation for this court to advert to that condition of the case, or make any order concerning it. The entry of the second judgment by the State court was an entry nuno pro tuno, reciting the same trial, and verdict found and returned by the jury on the twenty-ninth day of May, 1889; and the satisfaction of the first judgment entered would, of course, satisfy all other judgments entered nuno pro tuno on the same recovery, which is in fact one judgment twice entered. Moreover, section 311 of the Code of Civil Procedure provides: Satisfaction of a judgment may be entered in a clerk’s docket upon the execution returned satisfied, or upon an acknowledgment of satisfaction filed with the clerk, made in the manner of an acknowledgment of a conveyance of real property, by the judgment creditor, or by his indorsement on the face, or on the margin of the record of the judgment, or by the attorney, unless a revocation of his authority is filed. Whenever a judgment is satisfied in fact, otherwise than upon an execution, the party or attorney must give such acknowledgment or make such indorsement, and upon motion the court may compel it, or may order the entry of satisfaction to be made-without it.” Upon satisfaction of said judgment, entry of satisfaction must be made, showing a cancellation or satisfaction of all judgments entered upon said verdict. For these reasons,, we do not regard the point as one upon which this court should make an order on the determination of the appeal.

Upon careful consideration of all points presented in appellant’s motion for rehearing, we do not find grounds for granting the same. The motion is therefore denied.

Blake, C. J., and De Witt, J., concur.