Page:North Dakota Reports (vol. 3).pdf/140

 motion, viz: to enter a new judgment on the verdict, (upon the contingency that the existing judgments were first vacated,) was premature. The practice of mingling together in a single motion various matters which are distinct and severable in their character, and of disposing of the entire incongruous mass by one lump order, is not to be commended. Such a course tends to complicate and confuse issues which should be separated, and considered independently of each other. It is nevertheless quite clear that the order of the trial court denying both the motion of the plaintiff and the motion of defendant was, in its practical operation and legal effect, wholly favorable to the plaintiff. By such order the District Court refused to vacate plaintiff's judgments. The refusal to vacate was tantamount to saying that the judgments should stand as entered of record. Such an order could not prejudice any right of the plaintiff, and the same was not appealable.

Defendant's assignments of error present more serious questions. We will inquire first whether the trial court erred in refusing to vacate the judgments upon the ground that they were entered without notice to the defendant or its counsel. The practice of entering judgments in the District Courts in contested cases without notice, and in the absence of the defeated party, was extensively prevalent in those portions of the late territory which are now embraced within the boundaries of this state, and since the state has been admitted the practice still continues to be prevalent. The number of such ex parte judgments is very great, and, unless the most imperative reasons exist for so doing, we certainly ought not to establish a rule in this or in any case which could be used, or sought to be used, as a lever to upset the results of so much of the litigation which belongsto the past. But we know of no express statute or governing rule of practice that makes such holding necessary. Section 5095, Comp. Laws, provides that a judgment “may be entered by the clerk upon the order of the court, or the judge thereof.” At the time this section was enacted the line dividing the duties of the court while in session from those of the judge at chambers was much more