Page:North Dakota Reports (vol. 2).pdf/561

 8. An order, made by a judge of the district court to show cause why an appeal from a justice’s court should not be dismissed, cited the appellant to “‘show cause before the court at chambers,” etc. An order was made dismissing the appeal, which recited that it was made after hearing both sides on the return of the order to show cause. The order of dismissal was not made ata general or special term of the district court, nor did it recite in terms that it was made “by the court.” Only the following, words were appended to the Judge's signature to the order: “Judge District Court, Richland county, N. D.” Held, that it appears from the record that the order of dismissal was an order of the district court, and was not a mere ‘chambers order.” Travelers’ Insurance Vo. v. Weber, 239.

9. Held, further, that, inasmuch as the statute (3 4828, Comp. Laws) declares that district courts are “always open” except for the trial of issues of fact in actions, it follows that a judge of the district court cannot, at his option, and by the form of an order, or the style of his signature thereto, determine whether a given matter is or is not acourt matter. Id.

10. No appeal to this court was taken from the order dismissing the appeal, but after the time allowed for appeal had expired a motion was made before the district court to vacate the order of dismissal. The motion was denied, and defendant has attempted to appeal from the order refusing to vacate the first order. Held, that the order refusing to vacate the order dismissing the appeal is not appealable. This court will not take jurisdiction of an order of the district court refusing to vacate an appealable order made by the district court; nor can the time for appeal to this court be extended by an order of thecourt below vacating or refusing to vacate an appealable order. Whether an order dismissing an appeal from a Justice court to a district court is appealable, is not decided. Id.

11. Where judgment is irregularly entered, gond practice requires that it should be first assailed by motion in the district court. Theorder made on such motion is appealable, under subdivision 2, § 5236, Comp. Laws. But where a judgment is absolutely void or illegal on its face, it will be reversed by direct appeal from the judgment; but even in such cases the better rule is to begin by motion. Gaar, Scott & Co. v. Spaulding, 414.

12, An order punishing a person for contempt in disobeying an injunction, where the contempt proceeding is not and cannot be used as a remedy to enforce obedience to the injunction or to indemnify the party injured by the contempt, is not an order made in an action or special proceeding, and is therefore not appealable. Such a contempt proceeding is not remedial in its character, but purely of acriminal nature, its object being exclusively to vindicate the authority of the court. State ex rel. Edwards v. Davis, 461.

Objections Not Made Below.

13. The referee made his report embracing findings, whereupon the plaintiff moved for judgment thereon. Defendant opposed the application, but did not raise the point that an order confirming the report had not been previously made. The trial court on such application did not direct the entry of judgment, but resubmitted the case to the referee and, after taking additional evidence, the referee made his final report embracing his findings. Plaintiff applied for judgment based upon the final report. Defendant's counsel did not appear, but duly waived notice of such final application for judgment, and at no time in the court