28 Cal. 335 | Cal. | 1865
By the Court,
When this cause was called for trial in the Court below, plaintiff’s counsel was absent, and defendants’ counsel' insisted upon proceeding with the case. A trial having been had in the absence of the plaintiff, the Court found the facts and rendered judgment in favor of defendants. The Court soon after, on the same day, adjourned for the term. Within a few days, but not till after the adjournment of the term, the plaintiff’s counsel filed affidavits showing, among other things, that the plaintiff was at the time of the trial absent from the State, and that her counsel, who had the entire charge of the case, was absent from Court in consequence of severe illness, by which he was confined to his bed, and utterly incapable of doing any business. Upon these affidavits he moved the Court to vacate the judgment, on the ground thát it was obtained through accident, surprise and excusable neglect on her part.
The Court denied the motion on the ground that it had lost jurisdiction to grant the relief asked, in consequence of the adjournment of the term; and plaintiff appealed from the judgment and order.
On appeal, the order was reversed, the decision being put expressly on the ground that the District Court loses all power over its judgments after the adjournment of the term, unless its jurisdiction is saved by some motion or proceeding pending at the time. So also, in Shaw v. McGregor, 8 Cal. 521, the question was presented in a similar manner. The suit had been commenced and summons served, after which the plaintiff and defendant therein had a settlement of all matters in difference, including the suit pending, the plaintiff agreeing to dismiss the suit. The defendant paid to plaintiff the sum of money agreed upon and took from him a written discharge,
In Roland v. Kreyenhagen, 18 Cal. 456, the motion to vacate was made before the adjournment of the term.
The result of the numerous decisions, therefore, is, that the party must take the initiatory steps to obtain the relief authorized by section sixty-eight of the Practice Act before the expiration of the term at which final judgment is rendered, in all cases except those in which the defendant has not been personally served with process; in which cases the Court may,
The only remaining point is, that there was no judgment in fact entered until after the application to vacate was made, and for this reason the case is not within the principle established by the decisions. It appears from the record “ that the findings of fact and conclusions of law were signed by the Judge and filed on the 24th day of September, 1864, and that formal judgment was signed by the Judge on said day, and that the same was filed with and by the Clerk ” of the Court before the final adjournment, but that the Clerk did not enter the judgment in the judgment book or make up the judgment roll till after the adjournment, and till action to vacate the judgment had been taken. The proceedings, it is true, might not have been so far perfected as to authorize the issuing of execution, or to make the judgment a lien upon the lands; but the rights of the parties were fully ascertained and determined, the precise terms of the judgment settled, and the judgment not only finally pronounced from the Bench but
The judgment and order appealed from must therefore be affirmed, and it is so ordered.
Cuebet, J., dissenting.
I dissent.