Page:North Dakota Reports (vol. 3).pdf/136

 Charles H. Gould vs. Duluth and Dakota Elevator Co.

Opinion filed January roth 1893.

Vacation of Judgment.

Defendant moved in the District Court to vacate certain judgments entered in plaintiff's favor, and pending defendant's motion plaintiff made a counter motion, asking, in the alternative, either that the judgments be confirmed, or, if vacated on defendant’s motion, that a new judgment be entered on the verdict. Both motions were denied, by one and the same order. He/d, that while the order, in terms, denied plaintiff's motion, as well as that of the defendant, its practical operation and legal effect were wholly favorable to the plaintiff and wholly unfavorable to the defendant.

Separate and Distinct Matters Not Disposed of in One Order.

The practice of mingling distinct and independent matters in one hearing, and disposing of the batch by one order, condemned.

Appeal Dismissed.

No appeal will lie in plaintiff's favor from such order, and hence plaintiff's appeal therefrom is dismissed.

Order for Judgment—Ex Parte Application.

An application to the District Court, or to a judge thereof, for an order directing the entry of a judgment, may be made ex parte. Notice of such application is not necessary, unless a stay exists, or the court or judge, for some special reason, directs that such notice be given.

Judge May Direct Entry of Judgment Outside His District.

Under the proviso contained § 4828 Comp. Laws, a Judge of the District Court of the district in which the action is pending has authority, by an ex parte order, made while outside of such district, and within the state, to direct the entry of a judgment in such action; and, where an outside judge has been requested to act in the place of the judge of the district where the action is pending, under Ch. 61, Laws 1890, such outside judge is, with respect to such cases or matters as come within the request to act, empowered to ‘‘do and perform all such acts as might have been done and performed by the judge of such district.’” Accordingly, held, that the Judge of the Fifth Judicial District, who had been duly requested to act, had authority to sign an ex parte order for judgment in this case while within the fifth district; the action being pending in the third district.

Presumption of Due Taxation of Costs.

On appeal from a judgment embracing costs, this court will presume, unless the contrary affimatively appears in the record, that the costs were duly taxed and inserted in the judgment. Where presumptions control, they will only be indulged in support of the judgment. Eliott, App. Proc. § § 710,717, 718, 725.