on rehearing.
Young, J.Counsel for appellant filed a petition for a rehearing, urging, as ground therefor, that the court erred in holding that it is without lawful 'authority to enter upon a retrial of a case under § 5630 upon an appeal from only a part of a judgment. The point upon which our decision was based was barely suggested by counsel for respondent, and was not argued by counsel for either party. This fact, coupled with the fact that the question had not been previously presented and passed upon by this court, and is one of much practical importance, constrained us to grant a reargument, and the same was fully reargued at the present term. Nothing has been presented which alters the conclusion reached b.y a majority of the court and announced in the original opinion.
*103Counsel for appellant contend that our statute authorizes an appeal from a part of a judgment, and, assuming the correctness of this construction of the statute authorizing appeals to this court, they -contend that it was error to deny to the appellant the retrial which he demands. This contention entirely fails to meet the jurisdictional objections upon which our conclusion was based. As stated in the opinion filed, the question whether an appeal may or may not be taken from a part of a judgment is not involved, and any expression of opinion on that question would be both superfluous and valueless. Section 5603, Rev. Codes, which creates the right of appeal to this court, and § 5606, which provides the manner of taking appeals, correspond in language with the provisions of the California and Montana statutes. In the former state it has been assumed, in a great number of cases, that an appeal from a part of a judgment is authorized. See Hayne, New Trials and App. § 15, and cases cited. A contrary conclusion was reached by the supreme court of Montana. See Barclay v. Logan, 2 Mont. 296; Plaisted v. Nowlan, 2 Mont. 359. It will be time enough to settle this question for this jurisdiction when it is directly involved.
The question which is decisive of this appeal is not whether an appeal may be taken from a part of a judgment, but is whether a retrial can be had in this court upon such an appeal. The right of appeal is one thing, and the right of retrial on the merits is another and wholly different matter. To determine whether the right of appeal exists in any case, we must look to the statute authorizing appeals, and, to ascertain whether a right of retrial in this court exists, we must look to the statute authorizing retrials; that is, to § 5630, Rev. Codes, which, as this court has repeatedly held, is the entire source of our authority to retry cases. In Mapes v. Metcalf, 10 N. D. 601, 88 N. W. Rep. 713, decided at the last term, this court, in construing § 5630, said: “The only authority possessed by this court to retry cases is conferred by § 5630, Rev. Codes 1899, and the provisions of said section operate as a limitation upon our authority to do so. That section, in unmistakable language, as repeatedly construed by this court, authorizes and requires a final disposition of cases appealed thereunder at our hands. That the express purpose of this statute is to secure a speedy and final determination by this court of actions appealed thereunder, does not admit of doubt. The original act (chapter 82, Laws 1893) required the supreme court to ‘render final judgment according to the justice of the case.’ The same requirement as to rendering final judgment was embodied in the amended act (§ 5630, Rev. Codes 1895). The statute now in force, while differing in some respects from the former act, nevertheless retains those features which require a review of cases appealed thereunder on their merits and a final disposition of the same by this court. Under former acts we were even without authority to order a new trial. The hardship necessarily incident to this lack of authority was relieved by the present law, which permits *104this court to order a new trial when necessary, and in furtherance of justice. It is clear that § 5630, Rev. Codes 1899, only authorizes appeals to this court -for the purposes of a retrial thereunder in cases where the entire case is presented to this court for review and final determination. A retrial of a part of the issues, or of a fragment of a case, by this court would not only be contrary to the spirit of the statute, but in violation of its express language.” As previously stated, all the authority which this court possesses to retry cases is found in the section referred to. This section is not embodied in the legislation of any other state. In its present form it is an anomaly in the history of jurisprudence. The ‘undoubted purpose of the section is to secure a determination upon the merits in this court; but, by authorizing an appellant at his election to withhold from this court a retrial on the evidence of vital facts, the accomplishment of that purpose frequently becomes impsosible.
It may 'be that the ends of justice would be subserved by permitting appeals from a distinct part of a judgment and a retrial of the issues affecting the part appealed from, under proper restrictions. This, however, only goes to the question of what the legislature might, or perhaps ought, to have done, and does not alter the fact that in the statute under consideration it has not conferred upon this court the power to retry a part of a case upon an appeal from a part of a judgment. This is obvious from a cursory examination of the section in question. It refers to an “appeal from a judgment,” and contains no reference whatever to an “appeal from a part of a judgment. The contents of the statement of case which is made necessary to secure the retrials provided for are expressly prescribed. No provision is made for a statement of case adapted to a retrial and determination of a portion of a case. This court is given authority to affirm or modify a judgment appealed from, or direct the entry of a new judgment, or we may, in furtherance of justice, “order a new trial of the action.” It is patent that the jurisdiction thus conferred cannot be exercised where a portion of the judgment and a portion of the case remain in the district court, unaffected by the appeal, and it is also apparent that the provisions of the statute in question cannot be extended so as to be applicable to a retrial of a part of a case upon an appeal from a part of a judgment, except by reading into it a number of vital provisions which it significantly omits. This would be judicial legislation.
This is the first case in which this court has had occasion to consider the question presented by this appeal. In the case of Wishek v. Hammond, 10 N. D. 72, 84 N. W. Rep. 587, cited by appellant as a precedent, the defendant appealed from the entire judgment, and this court had jurisdiction of the entire case. Our conclusion is that the order of dismissal heretofore made should be adhered to.
Morgan, J., concurs.