Tubbs v. Sather

(after stating the facts as above). We are unable to see any merit in this appeal. In the prior case of Tubbs v. Sather, 29 N. D. 84, 149 N. W. 567, we held that the order of the trial court, which was entered on the order to show cause and which directed the clerk to satisfy the judgment of record, never did and never could *295become effective, because it provided that such judgment should be satisfied upon the delivery or tender of the horse, and that such was impossible as the animal had died before the making of the order. We therefore dismissed the appeal, as it merely involved a moot and academic question. We intimated, however, that the record could he ■cleared by a motion in the district court to reinstate the judgment. Here we have an appeal from an order reinstating that judgment, or, if we please, from a judgment reinstating that judgment. This judg-' ment or order merely put the parties in the same position they were in before the erroneous act of the clerk, based upon the inoperative order ■ ■of the district judge. The act of reinstating the judgment merely ■cleared the record of errors, and set aside acts which we held to have been unauthorized and nugatory. The important thing then and now is the validity of the original judgment against Christ Sather, the cancelation of which this court held to have been inoperative. That judgment has never been appealed from.

That judgment was not void. Surely a man may make what contracts he pleases, as long as the public safety or morality is not injuriously affected.

The record shows that Christ Sather married the widow of the original defendant, Ole Romfo. This fact and the stipulation itself show that he was interested in the estate of the deceased, and that, apart from this lawsuit, there was no reason why an administration should be had. It is, in fact, unnecessary for us to determine whether the estate or the heirs had any interest in the litigation over the horse. They were not made parties to any proceeding; no judgment was rendered against them; they were not parties to any action. An action merely was brought against the deceased, Ole Romfo, for the possession of a horse. He died pending the same, and the defendant, Sather, agreed to take the action upon his own shoulders, and if Ole Romfo was liable for the retention of the same, to stand in his shoes and to be substituted for him. This is evidenced by the written stipulation which was filed in the proceeding, and upon which all of the orders of the district court are based. No matter what the original pleadings may have been, the parties stipulated and agreed that the action should proceed as if Sather were the defendant and had stepped into the shoes of Romfo, and not only was the case tried upon this theory, .but the *296judgment was afterwards recognized by tbe said Satber by paying tbe costs of tbe action and attempting to satisfy tbe same.

Tbe stipulation, indeed, after having been filed in tbe case, not merely constituted an appearance on tbe part of Satber, but practically amounted to an amendment of tbe complaint so as to make him the defendant therein. If there was any variance in the proof, it cannot be taken advantage of here, as no appeal has been taken from tbe judgment against him.

Much has been said about tbe rights of the estate of Ole Eomfo, that tbe action abated upon bis death, and that this judgment is not binding upon bis estate or bis heirs, and that they may have bad rights in tbe horse. All this may have been, but of what import is it ? They are not. parties to any of tbe proceedings, and are nowhere beard to complain. No recovery has been sought against them, and their rights have in noway been litigated. Nor do we find any error in tbe action of tbe court in allowing tbe pleadings to be filed nunc pro tunc, nor any ground for tbe reversal of tbe order or judgment reinstating tbe prior judgment, on account of tbe fact that those pleadings were entitled L. D. Tubbs v. Ole Eomfo. It is clear to us from tbe record, indeed, that tbe complaint, was filed at tbe time of tbe original action, and, whether filed or not, that it formed the basis of tbe proceeding, as it was expressly referred to in tbe instructions that were given by tbe court to tbe jury. It was,, as we said before, practically amended as to parties by tbe stipulation, and that stipulation waived all technical defenses. It is too late now for tbe defendant to complain.

Nor was there any merit in tbe proposition that no order was entered in tbe district court for tbe second judicial district transferring tbe cause to tbe court of tbe newly created ninth district. As we construe § 157, Compiled Laws of 1913, all that was necessary was the entry of an order in'the ninth district, and this order was regularly entered.

Tbe judgiuent of tbe District Court is affirmed.

On Petition for Eehearing.

Defendant and appellant urges in his petition for re*297hearing that this court has erroneously held that the defendant, Christ Sather, by marrying the widow of Ole Komfo, acquired a legal interest in his estate. We, of course, held no such thing. When we used the words, “that he was interested in the estate of the deceased,” all we intended to say was that on account of the fact that he had married the widow and the heir of the deceased, it was natural that he should desire that unnecessary expenses of administration should be avoided.

• Appellant next urges that “the court has overlooked the fact that respondent acquiesced in the order of Judge Goss by accepting the sum of $129.70 costs ordered to be paid by Sather to Tubbs, and hence cannot accept the benefits of the order and repudiate the balance.”

There is no merit, however, in this point. In the first place there is nothing in the record to show that the $129.70 costs were ever paid to the respondent or ever accepted by him. In the second place, even if accepted by him, there would be no waiver of plaintiff’s rights. The costs were paid by the defendant, Sather, on the 2d day of February, 1909. The affidavit on the motion to show cause why the judgment should not be satisfied was not subscribed to until February 3, 1910, nor was the order of Judge Goss made until the 22d day of November,. 1910. As a matter of fact no tender of the horse was ever made, and even the affidavit does not claim that it was made before the 4th day of December, 1909. It is thus clear that the costs were paid long before the tender or pretended tender of the horse. At the time of the-payment of the costs, therefore, the plaintiff had judgment against the defendant for the return of the horse or in default thereof for the sum of $300, the value thereof, and in addition for the costs mentioned. It cannot possibly be claimed that when one has a judgment against another for the return of a horse and for costs, and he accepts the payment of the costs which are paid to the clerk, he thereby relinquishes his claim to a return of the animal. Of course, he might do so and accept the payment of the costs as a full satisfaction of his claim, but there is no such proof in the record that this was done.

Counsel also urges that we have overruled various provisions of the Probate Code. We have done no such thing. All we have held is that a man is a free moral agent; that if an action is brought against one man, or even an estate, and another person chooses to substitute himself as defendant, and agrees to be bound by the judgment and to *298waive all technicalities, he may be permitted to do so and may be taken at his word, and that if he has submitted to the jurisdiction of the court, allowed a jury to be impaneled and the case to be tried, has taken no appeal, has given notice of his willingness to abide by the judgment, and to tender the property and has acquiesced in the judgment by paying the costs and by asking for its satisfaction, he cannot, more than three years afterwards, question that judgment, set aside his stipulation, and deny the jurisdiction in which he has so long acquiesced.

The petition for a rehearing is denied.