Myers v. McDonald

Thornton, J. There are three appeals in this action, one from a judgment in favor of J. M. McDonald, another from an order refusing to set aside the judgment (No. 8187), and another from a judgment in favor of M. L. McDonald.

The cause came on for trial by the court on the 25th of January, 1881. After hearing the evidence offered, the court ordered judgment in favor of J. M. McDonald, and postponed the further trial of the cause as between the plaintiff and M. L. McDonald until the 25th of July, 1881. On this latter date, the court below orally announced that judgment would be given in favor of M. L. McDonald, and directed findings to be prepared and submitted to the court. Before the findings were signed, the attorney for McDonald directed the clerk of the court to enter the judgment rendered in his favor, and such judgment was recorded on the 7th of October, 1881.

From this judgment the plaintiff prosecuted an appeal to this court. When this appeal was taken and perfected, the findings had not been signed by the judge who tried the case, and findings had never been waived. In his ■bill of exceptions taken to be used on the appeal from this judgment, the plaintiff specified, as the errors on which he would rely to reverse the judgment, the failure to sign and file findings of fact, and errors of law occurring at the trial in the rejection of evidence offered by .plaintiff. The bill of exceptions just referred to was sufficient to bring these errors before the appellate- court. M. L. McDonald afterwards moved the Supreme Court for leave to confess error, and for an order reversing the judgment and remanding the cause for further proceedings. This motion was, on the 18th of March, 1882, [165]granted, and the order was entered accordingly. The order entered was that the judgment “be and the same is hereby reversed, with costs, and cause remanded.”

A remittitur containing this order was duly sent down to the lower court. On the filing of this remittitur in the court below, plaintiff moved that the cause be placed on the calendar for trial, as to the issues between plaintiff and M. L. McDonald. This motion was denied, and plaintiff excepted.

The defendant M. L. McDonald moved the court below for leave to present findings of fact and conclusions of law on the trial of this action, for signature by the judge, and that judgment be entered thereon. This motion was granted, and plaintiff excepted. The court then proceeded to have findings filed and judgment entered on them in favor of M. L. McDonald.