Daniels v. Daniels, No. 803

No. 803 | Nev. | Apr 15, 1877

By the Court,

Leonard, J.:

This is an appeal from an order of the eighth judicial district court, setting aside the default of defendant, vacating the decree rendered against him, reinstating said cause, and allowing defendant to file his answer. Default was entered January 18, 1876, and decree of judgment rendered March 22, 1876.

Respondent’s counsel, in their argument, claim that soon after default was entered, they sent to the clerk of said court the necessary papers for opening the default, etc., but it is admitted that they were not filed by the clerk or served upon counsel for appellant until June 5, 1876. The order appealed from -was made by the court June 8, 1876. At the several dates above-mentioned there were only two terms of said court, which commenced respectively, on the first Monday in June and December. In the year 1876, the June term commenced June 6, and the prior December term continued until the last-mentioned date. Defendant was served personally with summons in Esmeralda county, but failed to answer or otherwise plead within the statutory period.

Upon the hearing of the motion to set aside default, etc., plaintiff’s counsel objected to the granting of the same, on the grounds that defendant had not shown due diligence, and that the court did not have jurisdiction to set aside the default or vacate the decree and judgment rendered at a previous term.

Appellant urges as error, the action of the court in granting respondent’s motion, for the reason last stated.

It appears upon the face of the record herein, that respondent instituted proceedings in the court below to set aside the default and vacate the decree and judgment at the June term of said court, to wit, June 5, 1876. If any proceedings were commenced before the termination of the prior term which continued the jurisdiction of the court over the case, then the record, by proper motion in this court, should have been corrected so as to show such fact. In the present status of the case, we must presume the record before us speaks the whole truth, and that the default entered, and the decree and judgment rendered at the December term of said court, were set aside and vacated at the subsequent June term, when no proper steps had been taken during the December term to continue jurisdiction of the court over the case.

We think the court had no power to make the order appealed from, and that it is void.

It is well settled, upon the soundest policy, that after the adjournment of a term a court loses all control over its decrees and judgments rendered at such term, unless its jurisdiction is saved by some proper proceeding instituted within the time allowed by law. In this case no such proceeding was commenced. (Carpenter v. Hart, 5 Cal. 406" court="Cal." date_filed="1855-07-01" href="https://app.midpage.ai/document/carpentier-v-hart-5432963?utm_source=webapp" opinion_id="5432963">5 Cal. 406; Suydam v. Pitcher, 4 Cal. 280" court="Cal." date_filed="1854-07-15" href="https://app.midpage.ai/document/suydam-v-pitcher-5432744?utm_source=webapp" opinion_id="5432744">4 Cal. 280; Robb v. Robb, 6 Cal. 21" court="Cal." date_filed="1856-07-01" href="https://app.midpage.ai/document/robb-v-robb-5433029?utm_source=webapp" opinion_id="5433029">6 Cal. 21; Shaw v. McGregor, 8 Cal. 521" court="Cal." date_filed="1857-07-01" href="https://app.midpage.ai/document/shaw-v-mcgregor-5433520?utm_source=webapp" opinion_id="5433520">8 Cal. 521; Lattimer v. Ryan, 20 Cal. 632; Bell v. Thompson, 19 Cal. 708; DeCastro v. Richardson, 25 Cal. 52; Clark v. Strouse, 11 Nev. 79.)

If the respondent has any rights he must assert them in a court of equity. (5 Cal. 407" court="Cal." date_filed="1855-07-01" href="https://app.midpage.ai/document/johnson-v-the-pacific-mail-ss-co-5432964?utm_source=webapp" opinion_id="5432964">5 Cal. 407.)

The order of the court below is reversed.