Deering v. Quivey, 38 P. 710

Deering v. Quivey

38 P. 710

Or.

1895

Check Treatment

Opinion by

Mr. Justice Moore.

1. The first question properly to be considered is whether the order complained of is a final judgment, and *558reviewable in this сourt. If the court had no power to make the order at the time it was made, the judgment rendered would be void, and an appeal would lie to review it: Trullenger v. Todd, 5 Or. 36. Mr. Chief Justice Fuller, in Hume v. Bowie, 148 U. S. 245, 13 Sup. Ct. 582, in commenting upon an order of the court vacating a judgment, said: “The question invоlved is one of power, for if the court had power to make the order when it was made, then it was not a final judgment, as it merely vacated ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the former judgment for the purpose of a new trial upon the merits of the original action. If the court had no jurisdiction over that judgment, the order would be an order in a new proceeding, and in that view final and reviewable. ”

2. The statute provides that the court “may, in its discretion, and upon such terms as may be just, at any time within one year after notice thereof, relieve a party from a judgment taken against him through his mistake inadvertence, surprise, or еxcusable neglect”: Hill’s Code,’ § 102. It cannot be successfully contended that there was any mistake, inadvertence, surрrise, or excusable neglect on the part of the defendants when they elected to rely upon their demurrer to the complaint, and suffered judgment to be rendered against them for want of an answer. ‘ ‘A motion or proceeding, ” says Mr. Black in his wórk on Judgments, § 330, “to vacate or set aside a judgment cannot be sustained on any grounds which might have been pleаded in defense to the action, and could have been so. pleaded with proper care and diligence.” Relief will not be granted when a party has knowingly acquiesced in the judgment complained of, or has been guilty of laсhes and unreasonable delay in seeking his remedy: Craig v. Worth, 47 Md. 281; Elder v. Bank of Lawrence, 12 Kan. 242. The defendants had an opportunity to plead to the comрlaint, but they voluntarily declined to do so, and consented to and knowingly acquiesced in the judgment which was ren*559dered. The liberal provisions of the statute above quoted are intended for the benefit of those who, by reason of any of the causes there assigned, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍have not had their day in court. The defendants, having had this right, can not claim any relief under that section of the statute.

3. The remedy, if there is any in this case, must be based upon the inherent right of every court of recоrd to correct, modify, or vacate its judgments and decrees. This right, however, exists only while the proceedings of the court remain in the breast of the judges, or during the term at which the judgment or decree was rendered; and at the close of such term all final proceedings had therein become conclusive, and the court loses jurisdiction of them: Freеman on Judgments (3d ed.), § 69. “When a final judgment,” says Pleasants, J., in Brewster v. Norfleet (Texas Civ. App.), 22 S. W. 226, “has been rendered in a cause, and the term of the court has expired, the jurisdiction of the court over the subject matter of litigation is gone; and the court has no power to set aside the judgment, and to hear the case anew, for the purpose of correcting errors committed upon thе former trial.” This was the rule of the common law, and, unless modified by statute, still prevails in most of the state courts. The court is authorized to vacate or annul its judgments after the term at which they were rendered only for causes which show that they are unjust by reason of some facts not apparent to the court at the time they were rendered, or for want of jurisdiction over the parties: 1 Black on Judgments, § 306; Freeman on Judgments (3d ed.), § 96; 12 Am. and Eng. Ency. 126. The right to obtain a modification or vaсation of a judgment may be extended by motion or other proper proceeding filed, but undisposed of, during the term аt which the judgment was rendered, thus keeping “in the breast of the judges of the court” all matters which have not become а part of the judgment *560roll: 1 Black on Judgments, § 306. Every term of court provided by law continues ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍until the call of the next succeeding term, unless previously adjourned sine die: Freeman on Judgments (3d ed.), § 90. “In this country,” says Mr. Justice Miller, in Bronson v. Schulten, 104 U. S. 410, ‘all courts have terms and vacations. The time of the commencement of every term, if there be half a dozen a year, | is fixed by statute, and the end of it by the final adjournment of the court for that term. This is the case with regard to all courts of the United States, and if there are exсeptions in the state courts they are unimportant. It is a general rule of the law that all the judgments, decrees, or оther orders of the courts, however conclusive in their character, are under the control of the court which pronounces them, during the term at which they are rendered or entered of record, and that they may be set aside, vacated, modified, or annulled by that court.

4. This court will take judicial notice that a regular term of the circuit cоurt was held in Benton County, commencing ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍on the fourteenth day of November, eighteen hundred and ninety-two, or the second Mоnday in said month: Holcomb v. Teal, 4 Or. 352; Hill’s Code, § 2329. The transcript before us does not show that there was any adjournment sine die of the April term of said court in eighteen hundred and ninety-two, and hence, in the absence of any-record evidence to the contrary, it may bе presumed that it continued until the call of the November term of that year. But this cannot avail the defendants, for their mоtion to vacate the judgment was not filed until after the commencement of the November term, to wit: on November twеnty-fifth, eighteen hundred and ninety-two, and hence there was nothing in the breast of the judge of the court to keep alive any jurisdiction over the said judgment. The court, therefore, was without power to vacate its former judgment, and its action in so doing is review*561able in this court as a void judgment in a new proceeding, which must be reversed and the cause ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍remanded fоr such further proceedings as may be necessary not inconsistent with this opinion.

Justice Wolverton, having participated in the trial of this cause in the court below, took no part at the hearing or decision in this court upon the appeal.

Reversed.