Sheridan County Electric Co-Op., Inc. v. Anhalt

257 P.2d 889, 127 Mont. 71, 1953 Mont. LEXIS 41

• Court: Montana Supreme Court
• Decided: May 26, 1953
• Docket: 9125
• Status: Published

Opinions

MR. JUSTICE BOTTOMLY:

This is an action in condemnation by the Sheridan County Electric Co-op., Inc., for right-of-way easement. Complaint and answer were filed. Hearing of the cause was had commencing on the 27th day of February 1951. The court took the matter under advisement and each side was given five days to submit briefs.

May 22, 1951, the court made its findings of fact and conclusions of law, and concluded with the statement: “That a judgment of appropriation and condemnation in the form provided by law should be made and entered herein. ’ ’ No order of condemnation, no order appointing commissioners, and no judgment was or has been made, given or entered in the proceeding.

May 31, 1951, the court on his application therefor, granted the defendant Elmer 0. Anhalt, sixty days in addition to the statutory time in which to prepare, serve and file a bill of exceptions.

Notice of appeal was dated and filed on July 19, 1951, and, omitting the formal parts, is as follows: “Please take notice that the defendant, Elmer 0. Anhalt, hereby appeals to the Supreme Court of the State of Montana, from the findings of Fact and Conclusions of Law of the Court dated the 22nd day of May, 1951, and filed and entered on the same day. This appeal is taken from the whole of the Findings of Fact and Conclusions of Law and is based upon questions of law and fact.”

The question of jurisdiction was raised by this court on oral argument. The question of jurisdiction should be inquired into by the court at the earliest inception on its own initiative to ascertain whether or not it has jurisdiction. State ex rel. Irvine v. District Court, 125 Mont. 398, 239 Pac. (2d) 272, 275; Endresse v. Van Vleet, 118 Mont. 533, 539, 169 Pac. (2d) 719; Pulliam v. Pulliam, 163 Kan. 497, 183 Pac. (2d) 220, 221, 1 A. L. R. (2d) 418; Williams v. Sherman, 36 Idaho 494, 212 Pac. 971; McNee v. Hart, 117 Okl. 220, 246 Pac. 373; Kramer v. Pixton, 72 Utah 1, 268 Pac. 1029; Luckenbach v. Krempel, 188 Cal. 175, 204 Pac. 591; Kreiss v. Hotaling, 96 Cal. 617, 31 Pac. 740.

Both plaintiff and defendant argued that this court has jurisdiction, in that an appeal may be taken to this court from the findings of fact and conclusions of law in this kind of a case.

Condemnation proceedings are a special proceeding, provided for by statute. R. C. M. 1947, see. 93-9901 et seq.

The statute relied upon by appellant is subsection 3 of section 93-9905, R. C. M. 1947, the pertinent part being: “The plaintiff ' or defendant, or any party interested in the proceedings, can appeal to the supreme court from any finding or judgment made or rendered under this chapter, as in other cases. Such appeal does not stay any further proceedings under this chapter. ’ ’ Emphasis supplied.

Appellant relies upon the interpretation of this section as set forth in State ex rel. Davis v. District Court, 29 Mont. 153, 74 Pac. 200, 201, wherein he asserts this court interpreted said section as permitting appeals from order similar to the findings of fact and conclusions of law in this case. However, in the Davis case the district court had made and entered an appealable order of condemnation from which the appeal was taken. Other questions were involved in that case. All this court said as pertinent here was: ‘ ‘ Section 2214 [now R. C. M. 1947, sec. 93-9905], Code Civ. Proc., after enumerating the prerequisites to the granting of an order of condemnation, says: ‘ The plaintiff or defendant, or any party interested in the proceedings, can appeal to the Supreme Court from any findings or judgment made or rendered under this title, as in other cases.’ It is very clear that under this statute the defendant had an appeal from this order.” Emphasis supplied.

Appellant likewise relies on the holding of this court in Park County v. Miller, 117 Mont. 157, 159 Pac. (2d) 358, but there again the district court had made and filed an appealable order of condemnation and appointment of commissioners, from which appealable order the appeal was taken. This court held that there was an appeal from the order.

The case of Van Dyke v. Midnight Sun Mining & Ditch Co., 9 Cir., 177 F. 85, was a case in condemnation where the lower court had made findings of fact followed by an order of condemnation, from which the appeal was taken. In Northern Mining & Trading Co. v. Alaska Gold Recovery Co., 9 Cir., 20 F. (2d) 5, also a condemnation case, the lower court made findings followed by an order appointing appraisers, from which order the appeal was taken. It will be noted that in each of the foregoing eases the lower court had made and entered an appealable order from which the appeal was taken. It is not questioned but that an appeal lies from such an order under subdivision 2 of section 93-8003.

Appellant states in his brief that: “We can see little, if any difference between the orders in the above two Montana cases and the findings of fact and conclusions of law made here.”

The difference lies in the fact that appealable orders were entered in each of the foregoing cases while no such order was made or entered in the case at bar. Woodward v. Perkins, 119 Mont. 11, 14, 15, 171 Pac. (2d) 997; In re Sullivan’s Estate, 112 Mont. 519, 118 Pac. (2d) 383; Conway v. Fabian, 108 Mont. 287, 302, 303, 89 Pac. (2d) 1022; Galiger v. McNulty, 80 Mont. 339, 260 Pac. 401; Weed v. Weed, 55 Mont. 599, 600, 179 Pac. 827; State ex rel. Reser v. District Court, 53 Mont. 235, 163 Pac. 1149; Taintor v. St. John, 50 Mont. 358, 362, 146 Pac. 939.

The right of appeal is purely statutory. The legislature has laid down the rules governing appeals. By R. C. M. 1947, sec. 93-8001, it is declared: “A judgment or order in a civil action, except when expressly made final by this code, may be reviewed as prescribed in sections 93-7901 to 93-7908 and 93-8001 to 93-8023, and not otherwise.” Emphasis supplied.

R. C. M. 1947, sec. 93-8003, provides as far as pertinent here : “An appeal may be taken to the supreme court from a district court in the following cases:

“1. From a final judgment entered in an action or special proceedings commenced in a district court, or brought into district court from another court.

“2. From an order * * '* directing the delivery, transfer, or surrender of property * * Emphasis supplied.

Findings of fact and conclusions of law are not a judgment nor are they an order, as known to our practice; they are the court’s statement on which he will base his order or judgment. A party litigant may request findings in writing and have such request entered in the minutes of the court. R. C. M. 1947, see. 93-5305. Exceptions to the court’s findings shall be filed in the court and served on the attorney of the adverse party within five days after receiving from or giving to the adverse party a written notice of the filing of the findings. R. C. M. 1947, see. 93-5307.

These statutory provisions provide the parties litigant an opportunity to point out to the court wherein movant believes the findings do not reflect the true facts or are defective in some particular, and the court may, if it agrees, modify the findings accordingly, and upon failure of the court to remedy the alleged defect, the party moving shall be entitled to his exceptions, and the same shall be settled by the judge as in other cases. R. C. M. 1947, sec. 93-5306.

The record does not disclose that the appellant requested the trial court for findings nor that he moved that court for corrected or additional findings, nor that he filed or served objections to the findings and conclusions of law as found by the court. R. C. M. 1947, sec. 93-5305, provides in part that, “nor in cases tried by the court shall the judgment be reversed on appeal for defects in the findings, unless exceptions be made in the court below for a defect in the findings or in a finding.”

In that neither the Constitution nor the legislature has provided or seen fit to grant the right of appeal from findings of fact and conclusions of law, an appeal therefrom does not lie, and therefore this court has no jurisdiction to entertain this premature appeal.

It is asserted by appellant that respondent has not objected in any manner to the jurisdiction of this court to entertain this appeal. It is true that respondent also contends that this court has jurisdiction. However that may be, litigants and their attorneys cannot confer jurisdiction on courts; jurisdiction is conferred on courts only by the Constitution and the statutes. Where no jurisdiction exists by law, it cannot be conferred by consent or waiver. Compare: In re Woodside-Florence Irrigation Dist., 121 Mont. 346, 352, 194 Pac. (2d) 241, 244. “Even though neither party questions the jurisdiction, it is the duty of the court to determine from the record whether or not it has jurisdiction.” 2 Am. Jur., Appeal & Error, see. 15, p. 855. “All the powers of any court must be derived from the government that created it.” 14 Am. Jur., Courts, sec. 162, p. 365.' “Jurisdiction of appellate courts being dependent on the law, consent, agreement, or stipulation of the parties confers no jurisdiction on such a court.” 4 C. J. S.,' Appeal and Error, sec. 43, page 124. “Appellate jurisdiction is derived from the constitutional or statutory provisions creating the court, and can be exercised only in the manner prescribed.” 4 C. J. S., Appeal and Error, sec. 39, page 116; 21 C. J. S., Courts, sec. 85, page 127, and sec. 311, p. 562; In re Woodside-Florence Irrigation Dist., supra.

No legal appeal having been perfected herein, the attempted appeal is dismissed.

MR. JUSTICE FREEBOURN, concurs-.

MR. CHIEF JUSTICE ADAIR:

This is a proceeding brought in the district court of Sheridan county seeking to exercise the right of eminent domain to condemn private property for public use.

The proceeding is strictly sai generis. It is purely statutory. It is in invitum.

The proceeding is neither an ordinary action at law nor a suit in equity. It is ordinarily denominated a special proceeding of a civil nature.

Title XV, First Division of the Compiled Statutes of Montana of 1887, sections 597 to 615, inclusive, provided for the exercise of the right of eminent domain and section 601, page 216, thereof read:

“Sec. 601. Before property can be taken it must appear—

“First. That the use to which it is to be applied is a use authorized by law.

“Second. That the taking is necessary to such use.

“Third. If already appropriated to some public use, that the public use to which it is to be applied is a more necessary public use.”

In the early case of Montana Central Ry. Co. v. Helena & R. M. R. Co., 6 Mont. 416, 12 Pac. 916, decided in 1887, being an appeal from an order of injunction, the appellate court considered and applied section 586, page 192, Laws of 1877, being the same as section 601, First Division of the Compiled Statutes of Montana of 1887.

Neither section 601 nor any other section of Title XV authorized the taking of an appeal to the supreme court in a condemnation proceeding.

In the absence of statutory provisions providing for an appeal to the supreme court no appeal may be taken in a condemnation proceeding. Gallup Southwestern Coal Co. v. Gallup American Coal Co., 39 N. M. 94, 40 Pac. (2d) 627.

In Great Northern Ry. Co. v. Fiske, 54 Mont. 231, 233, 169 Pac. 44, 45, an appeal from a judgment entered in a condemnation proceeding, this court said: “It is the settled rule that in proceedings such as this the right to appeal is purely statutory and may be granted to, or withheld from, either party or both, at the discretion of the Legislature, if no constitutional provision is thereby infringed.”

Because no right of appeal to the supreme court was provided or existed under Title XV, First Division, Compiled Statutes of Montana of 1887, section 601 was amended to so provide by adding to the third subdivision of said section two additional sentences. The first sentence so added provides that the plaintiff or defendant or any party interested in the proceedings can appeal to the supreme court as in other cases. The second sentence added, being the last sentence of the section, provides that such appeal does not stay any further proceedings under the title or chapter governing the exercise of the right of eminent domain. Section 601, First Division, Compiled Statutes of 1887, as so amended became section 2214 of Title VII, Montana Codes of Civil Procedure of 1895 and is now R. C. M. 1947, sec. 93-9905.

The instant proceedings were brought and prosecuted under the provisions of Chapter 99 of Title 93 of the Revised Codes of Montana of 1947, secs. 93-9901 to 93-9926, inclusive. The next to the last sentence of R. C. M. 1947, sec. 93-9905, supra, provides that any party interested in the proceedings can appeal to the supreme court “as in other cases” thus making it clear that Chapter 99 of Title 93, R. C. M. 1947, supra, is not complete in itself. Such being the situation, an appellant must resort to other sections of the Codes for the rules that govern his appeal since the provisions of Chapter 99, supra, wholly fail to specify how or when an appeal to the supreme court may or must be taken; what undertaking or deposit is to be given or made to secure costs on appeal, — when such undertaking or deposit must be given or posted and so forth, making it necessary for an appellant to resort to the provisions of the general statutes relating to appeals “as in other cases” such provisions being set forth in Chapter 80 of Title 93, R. C. M. 1947, secs. 93-8001 to 93-8025.

In the case of United States v. State of Montana, 134 F. (2d) 194, 197, the circuit court of appeals for the ninth circuit, in considering section 9937, Rev. Codes of Montana 1935, now R. C. M. 1947, sec. 93-9905, correctly held that such Montana statute does not relate to forms and methods of procedure but that it is a rule of substantive law.

At common law error lies only from a final judgment and this general requirement of finality has been carried into our statutes providing for a review of proceedings on appeal to the supreme court.

Generally speaking a judgment, decree or order, to be appeal-able must be final or in the nature of a final decision. The object of such requirement is to present to the supreme court the whole cause for determination in a single appeal and thereby eliminate the unnecessary expenses, labor and delays attendant upon repeated appeals. Cases should not be brought to the supreme court piecemeal through the medium of successive appeals and where error may be corrected or relief had in the trial court it should be applied for there before bringing the ease to the supreme court for review.

While section 93-9905 makes no mention of an appeal from any order made in a condemnation proceeding yet it is well settled that at the present time an appeal lies from any judgment or order therein entered which is final and conversely an appeal does not lie from orders or matters which are merely interlocutory.

Upon a timely and proper appeal from an appealable order, judgment or decree, the supreme court may review a great many matters and things which of or in themselves, standing alone, are not appealable such as intermediate orders, decisions, rulings, findings of fact, verdicts and other proceedings to which objections have been made or exceptions taken. R. C. M. 1947, secs. 93-216, 93-8002 and 93-8023.

More than half a century has elapsed since the statute, now R. C. M. 1947, sec. 93-9905, was amended so as to authorize a party interested in a condemnation proceeding to take an appeal to the supreme court “as in other cases” and in his annotation to section 93-9905, the code commissioner has cited nine decisions construing or applying the provisions of such Code section. Two of the decisions were in original proceedings and the remaining seven decisions were in appeal cases. In none of the cited cases was the appeal taken from the trial court’s findings of fact.

In the cited case of Montana Central Ry. Co. v. Helena & R. M. R. Co., 6 Mont. 416, 12 Pac. 916, decided in 1887, and long before tbe amendment of section 601, First Division, Compiled Statutes of 1887, the appeal was from an order of injunction.

In tbe cited case of Butte, Anaconda & Pac. Ry. Co. v. Montana Union Ry. Co., 16 Mont. 504, at page 515, 41 Pac. 232, 236, 31 L. R. A. 298, 50 Am. St. Rep. 508, decided in July 1895, tbe appeal was “prosecuted both from the judgment md the order overruling tbe motion for a new trial. ’ ’ Emphasis supplied.

In tbe cited case of City of Helena v. Rogan, 26 Mont. 452, 454, 68 Pac. 798, decided in 1902, tbe appeal was from a judgment.

In tbe cited case of Northern Pacific Ry. Co. v. McAdow, 44 Mont. 547, 121 Pac. 473, decided in 1912, tbe appeal was from an order of condemnation.

In tbe cited case of State of Montana v. Bradshaw Land & Livestock Co., 99 Mont. 95, 43 Pac. (2d) 674, decided in 1935, tbe appeal was from a judgment entered on a jury’s verdict in an action to condemn a right of way over defendant’s lands.

In tbe cited case of Park County v. Miller, 117 Mont. 157, 158, 159 Pac. (2d) 358, decided in 1945, tbe defendant appealed to tbe supreme court from an order of condemnation made by tbe district court of Park County.

In tbe cited case of United States v. State of Montana, 134 F. (2d) 194, decided in 1943 by tbe United States circuit court of appeals for tbe ninth circuit, tbe appeal was from a judgment dismissing a condemnation proceeding.

The cited case of State ex rel. Davis v. District Court, 29 Mont. 153, 156, 74 Pac. 200, decided in 1903, was not an appeal. On tbe contrary it was an original application in and to tbe supreme court for a writ of certiorari wherein it was sought to have an order of condemnation annulled. In that ease this court held that under section 2214 of tbe Montana Codes of 1895 (now R. C. M. 1947, sec. 93-9905) tbe defendant bad tbe right to appeal from the order complained of thereby precluding a resort to certiorari.

Likewise the cited case of State ex rel. McLeod v. District Court, 67 Mont. 164, 215 Pac. 240, decided in 1923, was not an appeal. It was an original application to the supreme court for a writ of prohibition. In such original proceeding this court held that a city has no power to condemn land for a public highway outside of the city’s corporate limits and issued the writ sought declaring that the district court was without jurisdiction to condemn relator’s land.

As to the nine cases cited in the annotation to R. C. M. 1947, see. 93-9905, two of the decisions were in original proceedings and not in appeal cases invoking the appellate jurisdiction of the supreme- court, — three of the appeals were from an order of the trial court, — three of the appeals were from a judgment, — - in one case the appeal was from both a judgment and an order and in none of the cases cited was the appeal taken from the trial court’s findings of fact or from its conclusions of law. In each appealed case the appeal was taken either from (1) a final order, (2) a judgment or (3) both a judgment and an appealable order.

Such has been the established practice in this jurisdiction for more than fifty years past in taking appeals in condemnation proceedings. While the second sentence of subdivision 3 of section 93-9905 in substance authorizes appeals in condemnation proceedings brought under Chapter 99 of Title 93, R. C. M. '1947, “as in other cases” and while no provision of section 93-9905, supra, makes any mention whatever of any order or of any appeal from any order nevertheless “in other cases” appeals are allowed from various orders and accordingly this court has held that an appeal will lie from a final order of condemnation made pursuant to the provisions of Chapter 99, Title 93, R. C. M. 1947, regulating the exercise of the right of eminent domain. Park County v. Miller, 117 Mont. 157, 158, 159 Pac. (2d) 358.

Upon the authorities above cited I concur in the dismissal of the instant appeal.