Page:North Dakota Reports (vol. 1).pdf/148

 murrer was had; and the trial court determined said issues, and made its order thereon as follows: “It is ordered that said demurrer be, and the same is hereby overruled. It is further ordered that the said demurrer be, and the same is hereby sustained to the plaintiff's complaint in said action, and that said action be, and the same is hereby dismissed, with costs to be taxed, unless the plaintiff amends his complaint within twenty days from the date hereof.” It was admitted upon the trial of this case that the complaint in the former action was not amended. It was claimed in the court below that the order upon the demurrer aforesaid was a final judgment upon the merits, and constituted a bar to the present action. The court below held that it was not a final judgment, and the ruling is assigned as error in this court. We hold that said order was not a final judgment, and was not intended to be final by the district court, and further, that if it had been a final judgment, the same would not be a bar to the present action. Our reasons are as follows:

The trial court, among other findings of fact, found that “the order pleaded in defendants’ answer was never succeeded by a final judgment in said action based thereon.” Sofarasit is a matter of fact, the evidence justifies this finding of the district court. It appears that the order (so-called ‘“judgment”) was filed with the court more than 20 days subsequent to its date, and on October 27, 1886. The clerk of the district court testified with respect to the order as follows: “It is the original of the page I have read from the judgment docket.” It nowhere appears from the testimony, and was not claimed upon the argument in this court that the clerk of the district court ever at any time was directed by the district court; or by the attorneys in the former action, to transcribe the order in question into the judgment docket or other record book in his office. So far as appears from the testimony, the act of copying the order into the judgment docket was purely a voluntary act on the part of the clerk of the district court, and was therefore unauthorized, unless it was the duty of the clerk, under the law, to record such an order at length in the docket. We think it was not his duty to do so. It does not appear that the order was ever entered in