Opinion
Appeal from the Sixth Judicial District.
The record in this case shows, that on the 6th July, 1850, judgment was rendered by confession in favor of plaintiffs, against defendant for $ 9500. On this judgment execution issued, which was returned with satisfaction thereof endorsed and signed by plaintiffs, as received of Chevor, one of defendants (except the costs not paid.) This endorsement of satisfaction was upon the return of the execution, entered upon the margin of the judgment. The endorsement is dated October 1st, 1851, and the return was made to the clerk's office, October 12th, 1850. On the 14th day of February, 1853, on motion of the attorney of the plaintiffs, it was ordered by the Court that the marginal entry of satisfaction be stricken out, and that the judgment remain in full force, and valid as between the defendants. This motion and order were made ex parte, and without notice to defendants.
On the 26th May, 1853, L. W. Hastings, one of the defendants, moved the Court to set aside the order of 14th February, 1853, striking out the marginal entry of satisfaction, which the Court overruled; and it was from the judgment or order of the Court overruling this motion, that this appeal is taken by L. W. Hastings, to this Court.
COUNSEL
The order should not have been made ex parte. A judgment without notice is void. (1 Howard, 351; Ib. 521.) The counsel's argument was confined to the order of the Court of 14th February, and was to the order appealed from, refusing to set aside that order.
Burril and Goss, for Appellant.
No brief for respondent on file.
JUDGES: Heydenfeldt, Justice, delivered the opinion of the Court. Murray, Chief Justice, concurred.
OPINION
HEYDENFELDT, Judge
In February, 1853, the District Court on an ex parte motion, ordered to be stricken out, a marginal entry of satisfaction of a judgment, which had been rendered two years before. This was a wrongful exercise of authority, and is a proper subject for the reviewing power of this Court.
But the defendants do not appeal from that order. They make a motion to set aside that order, and then appeal from the refusal to grant their motion. This is certainly not revisable: it is the mere negative action of the Court declining to disturb its first decision. It is that decision which is the proper subject of complaint, and the refusal to alter it, any number of times, would not make it less so. There must be observed in appeals to this Court, the order and regularity which belong to well-established principles founded in sound reason.
The appeal is dismissed.