Bailey v. Steele
502 P.2d 586
Or.
1972
Check Treatment

*1 Argued. July 5, remanded reversed and November Respondent. Appellant, STEELE, BAILEY, *2 argued the cause Boothe, Portland, Ferris F. appellant. by respondent. appearance

No TONGUE, J. denying plain- appeal from an order

This is an judgment against to set aside a tiff’s motion injury personal case. in a defendant previous decision in v. Universal In our 201, 474 P2d 746 Ins., 258 Or Underwriters plaintiff was not entitled to re- that against insurer Steele’s for the defendant cover cooper- among that had failed others, Steele reason, company and that, a result, insurance with the ate prejudiced of the default been it had Following filing plain- Steele. that default to set de- motion tiff’s Entry filed a “Consent to Order Set- fendant Steele Judgment.” ting Default Order Aside judge, opinion, in a memorandum “* * * grant [plain- would inclined he stated tiff’s] discretionary motion if this had the au- Court * * *” thority do so, but denied the motion on the jurisdiction authority had no to set aside the default and that defendant’s con- jurisdiction upon sent did confer such the court. holding We hold erred jurisdiction it had no to set aside the default in this case motion and consent “[f]rom the defendant. ORS 15.030 * * * the service of the summons the court acquired jurisdiction, shall be deemed to have and to * * subsequent proceedings control have of all the It has been held this court that the judgments court to vacate or set aside its own is an general inherent of all courts of record or of jurisdiction any special be exercised without statutory authority. Or., Mitchell v. Wn., Credit & Coll. (1950).(1)

Bur., 188 Or 389, 393, 215 P2d 917 *3 past years power In this inherent of a court could only during be exercised the same term of court. Miller (1961), Miller, v. 228 301, 304, 365 P2d and Koennecke v. Koennecke, 397 P2d (1964). In this limitation however, was removed adoption of ORS which 1.055, * * tbe existence or nonexistence of a term of court powers has no effect on the duties and of the court,” “* * * if done within a reasonable of time.” (1) authority of a the court to set aside former power separate as an exercise of its inherent tion to the from and in addi upon conferred the courts ORS to 18.160 party through from a relieve a mistake, taken him his surprise inadvertence, neglect, or excusable which must year Judg be done “within one Freeman, after notice thereof.” (5th ed) 420-21, ments 216. § supra Koennecke, at Miller,

See Miller v. 276.(2) supra at supra in we said that Miller, Miller v. case:

such a ordinarily mat- is a reasonable “What of trial court. ter within discretion Whether depends not there has been an abuse discretion or * *” * upon all of the facts of the case. judge previously stated, In this as case, judg- the default denied defendant’s motion to set aside “discretionary ment that he had no authority” jurisdiction appear, or do so. It does not reached con- whether however, opinion was clusion because he judgment was this default not made motion to set aside law. as a matter of time, within a reasonable Although not had occasion con- this court has delays long as sider the reasonableness delays courts held that case, in this other have involved applications making months several judgments depend- unreasonable, set aside quite although ing upon the under dif- circumstances, Incorporated Accounts, facts. United v. ferent See (N 1966); Marquez Dak 488, 145 NW2d Lantz, Rapid Co., 99 Ariz Harvest 287-88 Klapprott (1965); States, v. United 335 US generally expiration of the term it was After except set aside former no that a court judg circumstances, such as cases in which the limited under al v. Pacific Finch et Reduction void. Cf. etc. ment Dugger 675-76, Lauless, P 296 et ux (Í959). 188, 196-97, *4 upon such effect cases of the consider the 1959 Amend need not appellant because not ORS 1.055 does contend that the ment of application judgment void and contends that was was made judgment period “within a reasonable the time.” set aside (1949). S 93 L 2d Ct ed Restatement 384, Cf. Judgments 129(b), § e. Comment judgment May This default was entered on while the motion to it was set not filed appears, until however, June 1971. It three-year entirely occupied interval almost plaintiff’s judgment, by action enforce appeal previous case, which resulted in our decision Ins., Universal Underwriters by plaintiff’s supra, rehearing and motions for a and of that reconsideration decision. Plaintiff’s final motion was denied on reconsideration March 1971. Bailey Universal Underwriters Ins., 258 Or Plaintiff’s motion to aside the judgment was filed four months later, June 4, 1971. Under circumstances of this we be juris lieve that the trial in this case least whether, diction consider within its discretion, motion was filed “within a reasonable time.”(3) Although jurisdiction, court thus had power, in the exercise of its inherent to consider tiff’s motion to set aside the default in this question good case, remains whether there were powers. sufficient reasons for the exercise such (3) Aspreviously stated, the exercise a court of its inherent to vacate or set aside its own at least if done judgment, within a reasonable time after dependent statutory upon authority. Or., Wn., Mitchell v. Credit & Bur., Nevertheless, Coll. good obvious sufficient reasons be must shown before discretionary authority, in the exercise will vacate or a set aside otherwise there would an abuse of such discretionary power. When, a court is called 18.160, requirements set aside a default under ORS of that statute must be satisfied. *5 404 appears the

In it trial case, however, this question, to exercise did not reach that but declined its discretion under the mistaken belief in this case. no to set the default aside generally trial court fails It held that when a in as on it, or refuses to a discretion vested exercise pos power, it is lack of and whenever the by ordering trial court situation the sible to correct the appellate will not discretion, to the exercise its discretionary power vested undertake exercise the remand case in order that the trial but will court, trial court. then be exercised such discretion Paschong Hollenbeck, 13 2d 415, Wis 108 See v. NW2d Lynch, (1961); Capps 253 NC 116 v. 668, 672-73 (1960); Phillips Brandt, v. 231 141 Minn SE2d Wynne, (1950); 291 v. 356 Mo State 423, 43 NW2d (1947). Dodson, 931 Cf. Watson v. 1095, 204 SW2d (1964), and P2d Perdue v. Pac. Tel (1958). P2d 606, 326 Tel& remand this case to trial court therefore We all of trial consider instructions with case and decide whether, then the circumstances discretion, his the exercise aside.(4) judge may doing so, set should be question whether mo consider period of time,” “within a reasonable filed tion circumstances, all of the under whether, but also good sufficient reasons to set aside tiff has shown judgment. record in If the this ease were the default anything other than one result would be clear so Wells, Burke v. Wells Cf. See also Rachau, 262 Or Yundt 247, 486 P2d Bowl, Inc., DD & might to decide we undertake of discretion, an abuse Unfortunately, do not questions this level. these compel so clear as that the record is believe by the for decision leave them and therefore result, discretion. of its sound in the exercise trial court purpose remanding for this the case if the default mean to hold we do not its for trial on ease set and the then be able or would not, would, merits, *6 a her to recover entitle sufficient to offer evidence judgment in another action enforced that could be against Underwriters Universal insurer, defendant’s imposed Company, limitations of the in view Insurance recovery by previous our decision a 474 P2d Ins., Or Underwriters v. Universal (1970).(5) remanded. Reversed dissenting.

McALLISTER, J., time, my opinion unreasonable is an three asking wait before law, for as a matter entered a default to set aside court especially true motion. This on her her favor and attempting to three-year period spent when she (5) The denying plain an additional reason as plaintiff, vacate the motion to tiff’s by previously company, bringing insurance an action binding stated this As election of remedies. had made 34, 39-40, P2d 190 Center, Dave’s Auto in Johnson remedy available does (1970), is not the selection remedy, elec doctrine of but an available later resort bar estoppel that of collateral confused with is often tion of remedies present judicata. record on state of the Under the and res this we do not believe motion in tiff’s questions. Fletcher, properly Cf. Bahler v. consider such court can Holmgren Westport Towboat Co., only

enforce the and moved to it aside judgment proved when her efforts to collect the un- availing.

Until OKS 1.055 was enacted in 1959 a trial court power modify judg had the or vacate its own valid during ments and decrees within the term of court except which the decree was entered, specifically provided by statute. Finch v. Re Pacific duction etc. 234 P 670,675, OKS 1.055 as follows:

“(1) ap- A term of court is a of time pointed for the convenient transaction of the busi- ness of the court. The existence or nonexistence of a term court has no on the effect duties and powers of the court. “(2) Notwithstanding that an is authorized act required during

or expiration to be done before, or after the of a term of court, time.” be done within period of a reasonable request Legis This statute was enacted at the of the Administration.(1) lative Interim Committee Judicial longest it When was enacted the circuit term in this state was seven months and most were much brevity shorter. 4.110 to See OKS 4.270. The *7 of the statutory legislative terms of indicative substituting doing intent a reasonable formerly which of an act could have been done within the term. majority opinion cites Miller Miller, 365P2d 86 and Koennecke v. Koennecke, Miller the motion Legislative (1) Report of Interim Committee Judicial Ad January Organization

ministration, I, Operation Part of the Courts. days to set aside the decree was filed 27 after the days and three after the term decree entered expired. In was entered on Koenneclce the decree August entered on the amendment was 8, 1963, and September hardly authorize the 1963. These cases filing judgment more than three of a motion to vacate a judg- years judgment when the after the of the moving party of the ment has been entered in favor attempted request; and at when she had for three her only when she was to enforce the unsuccessful asked to have vacated so that she would hampered thereby. not be my should view the

be affirmed.