Page:North Dakota Reports (vol. 1).pdf/149

 the judgment book, which is the record in which judgments are required by statute to be entered. Comp. Laws, §§ 5101, 5102. The statute requires that the docket entry of judgment shall refer to the “page in the judgment book where the same is entered.” Section 5105, id. No such reference is found in the docket entry of the order in question, and hence we conclude that the instrument was never copied into the judgment book.

The date of transcribing the order into the docket does not affirmatively appear from the testimony, but a very strong presumption arises that it was not done until the matter of the taxation of the costs referred to in the order was first disposed of. The order contemplates that at a time subsequent to its date the costs of the action were to be taxed and inserted in a judgment which is directed to be entered in the future on a certain contingency. The process of taxing costs includes notice to the defeated party, and hence clerks of courts do not, ordinarily, enter a judgment until the costs are taxed. There is no ground in the record for supposing that the clerk departed from the ordinary practice in this case. The record shows that costs were not taxed; but it appears that the defendants, without notice to plaintiff's counsel, filed an instrument waiving costs with the clerk of the district court on the 8th day of June, 1888, which date is long subsequent to that of commencing the present action. In the absence of countervailing evidence, the presumption from the record is that the clerk followed the usual practice in the district court, and entered the order, as a judgment, promptly upon the filing of the waiver of costs in his office, and did not do so before that event. This being the case, there certainly was no judgment entered in the former action prior to the commencement of this action. It may be argued that the entry of a judgment is not essential to its validity. The statute requires that such entry shall be made; but whether an ordinary judgment must be entered before it takes effect as such is foreign to the question before us, for the reason that the order under consideration is not, and does not purport to be, a final judgment. In form, it is primarily an order made upon an issue of law raised by a demurrer. After disposing of the question raised by the demurrer, the court directs the en-