In re Weber

Bartholomew, C. J.,

(dissenting.) I am unable to concur in all of the foregoing opinion. In my judgment, an attempted appeal that gives the appellate court no jurisdiction of the case is properly dismissed by an order. No judgment of dismissal is necessary or proper, and the order of dismissal is a final appeal-able order. I will state my reasons, and apply them to this case briefly.

The action was forcible entry and detainer, and was brought to determine the rights of the parties to the possession of certain realty. In Justice Court the defendant practically defaulted, but undertook to appeal from the judgment against her. Motion was made in the District Court to dismiss the appeal. On the hearing of the motion, the court made an order stating, inter alia: “And, it further appearing that said appeal was without authority of law, now, therefore, it is ordered that said appeal be and the same is hereby dismissed.” The correctness of that order is not questioned. It stands as the law of the case. Was it effective to dismiss the case? The majority opinion says it was not, and that the case still remains and will remain pending in the District Court until the clerk makes a formal entry in the judgment book reciting the substance of the order, and concluding with a judgment for costs. The argument is this: Our statute permits an appeal from "an order affecting a substantial right, made in any action when such order in effect determines the action and *132prevents a judgment from which appeal might be taken.’’ This was an order dismissing an appeal for want of jurisdiction. But § 5194, Comp. Laws, provides: “When an action is dismissed from any court for want of jurisdiction, or because it has not been regularly transferred from an inferior to superior court, the costs must be adjudged against the party attempting to institute or bring up the action.” Therefore, say my brothers, the order of dismissal could not be a final appealable order, because it does not terminate the action, and must be followed by a judgment for costs. I disagree. The order of dismissal did, in my judgment, in effect terminate the action. After its entry, no further step could be taken by either paity; at best, there remained only the clerical duty to enter judgments for costs which the law imperatively demanded. The action was terminated. . Did the order prevent a judgment from which an appeal might be taken? I think it did, under our statute, which declares a judgment to be “the final determination of the rights of the parties in the action.” Clearly, after the order of dismissal no final determination of the rights of the parties could be made. The dismissal barred any such judgment. Nor do I think we are warranted in assuming that when the legislature used the word “judgment” in the appeal law it did not mean the judgment as defined by statute. If the order of dismissal in this case was not a final appealable order, it might be difficult to conceive such an order. Take a case where a defendant appears specially, and moves to dismiss by reason of defective service of summons. If the motion be granted the case is terminated, and the order appealable. Ryan v. Davenport, (S. D.) 58 N. W. 568, and yet the defendant would be entitled to costs under § 5194. If the motion be denied, the order is not appeal-able, because the case stands for hearing on the merits. The principal is identical in this case. Again, § 6136, Comp. Laws, speaking of dismissals of appeals from Justice Court in certain cases, says, “The same shall be dismissed by the order of the court.” That language is plain, and I deem it safer to make the case correspond with the statute rather than refine upon the statute to make it correspond with the desired case.

*133It is conceded in the majority opinion that by the great weight of authority, in the absence of statutes granting costs, when appeals are dismissed for want of jurisdiction, such dismissals are effected by order; that the court can enter no judgment for costs, and take no action except to brush the case from the calendar. No reason was suggested at the argument, nor is any suggested in the majority opinion, why it should take other or greater process to dismiss the appeal in the one case than in the other. If an order will dismiss the appeal when costs are not allowed, it is incomprehensible to me why the same instrument will not effect the same purpose when costs are allowed. The statute directing costs presupposes a dismissal. There was a reason for the stathte. It was unjust to compel a party to employ counsel and follow a fictitious appeal to the higher court, and there procure its dismissal, and yet be able to recover no costs. To remove that injustice this statute was enacted. It is strange if so simple a purpose can be effected only by a total change in the method of obtaining dismissals for want of jurisdiction. Nor do I think the majority opinion at all strengthened by reference to the case upon which it is based, — Mouser v. Palmer, 50 N. W. 967. That is a South Dakota case, and the statutes there are the same as ours. It is based upon Zoller v. McDonald, 23 Cal. 136, and Bowie v. Kansas City, 51 Mo. 459. The former expressly holds that an order dismissing an appeal for want of jurisdiction is a final appealable order. The Missouri case holds that to be a final judgment which, under the holding in the majority opinion as to what constitutes a judgment, and in which I concur, would constitute no judgment whatever in this state. It was simply an order of dismissal for failure to amend, and it is stated that “no final judgment was rendered in form,” and the court adds: “But the case was entirely out of court, dismissed against the will of plaintiff, and was a finality so far as plaintiff was concerned.” In other words, it performed the service that I claim for the order in this case. It ended the case, although no judgment for costs or otherwise was entered. The case is an *134authority for the appealability of the order of dismissal in this case. My associates find support for a distinction between cases when costs are and are not allowed in the language in Ross v. Evans, 30 Minn. 206, 14 N. W. 897. When the language is read with the context I do not think it is or was intended to be decisive of that point. In holding the order of dismissal in that case appealable and final, the court use the language quoted by Judge Wallin: “No costs were allowed or were taxable, and no further action of the court was required,” and immediately adds: “From the nature of the case, if the court had not required any jurisdiction to take cognizance of the action, the order was necessarily a final one, which prevented further proceedings in the District Court.” The condition of this case on appeal to the District Court was the same. That court was without jurisdiction to take cognizance of the case as such. Dealing with the case, it could do nothing but dismiss it. It could enter no judgment affecting the rights of the parties. By virtue of the statute, costs could be recovered against the party who undertook to bring up the case on appeal. But that did not affect the status of the case. That was dismissed. Costs are not a necessary part of a judgment. Mouser v. Palmer, supra. They “are an incident or appendage of the judgment” (Scott v. Burton, 6 Tex. 322,) and their omission does not render the balance of the judgment less final and appealable (Williams v. Wait, [S. D.] 49 N. W. 209.) Had the dismissal in this case been entered in the judgment book, without costs, it would have been final and appealable under the logic of my associates. But it would have been in form and effect an order only. No execution or process could have issued on it. It would have been a lien upon nothing. It would have settled no rights. It would have performed no functions of a judgment, and all of the functions of an order. It would have been entered upon theCdetermination of no issue raised by pleadings, either of law or fact. It would have been entered in response to a motion, —the proper application for an order. And yet my associates insist that the dismissal must be by judgment, and cannot be by *135order. It is true, as claimed, that the rule of practice adopted by my associates is, in theory at least, productive of greater .uniformity and simplicity in case of appeal to this court. But I cannot for that reason alone adopt, without protest, a rule which I believe to be contrary to the clear weight of authority, and destructive of our statutory definition of a judgment and of an order, and in direct opposition to the provision which declares that an appeal from Justice’s Court may be dismissed by order of of the District Court.

(59 N. W. Rep. 523.)