67 Iowa 175 | Iowa | 1885
Lead Opinion
It will be conceded, if the court had jurisdiction of the defendant at the time the order was made setting aside the judgment, that the order cannot be attacked in this proceeding, but that the defendant should have appealed, and thus corrected the error. Code, § 3216; State v. Roney, 37 Iowa, 30. It will also be conceded that the court had the power to expunge any record made during the term, provided it had jurisdiction of the parties at the time the change in the record was made. The statute upon this subject is in these words: “ The record aforesaid is under the control of the court, and may be amended, or any entry therein expunged, at any time during the term at which it is made, or before it is signed by the judge.” Code, § 178. It will be observed that the statute contemplates that the expunging order may be made during the term, or before the record is
In the case at bar, final judgment had been rendered. Ordinarily, when this has been done, the case is at an end, except that amotion for a new trial may be filed within three days thereafter. While it may be that the court had jurisdiction of the defendant during such period for the purposes of such a motion, the defendant was not bound to anticipate that the plaintiff would withdraw his election to stand on the petition, or that the court would permit him to do so and file an amended petition, and that the court would set aside the final judgment previously entered. The case having been disposed of by the rendition of the final judgment, the court ceased to have jurisdiction over the defendant in the action, and the defendant’s attorney was not bound to remain in court, but could well leave as he did. It may be that the order was one that should have been made, and that substantial justice required the court in this instance to do so. But this is not the controlling consideration. The controlling question is one of jurisdiction, and it is evident, if the court did not have j urisdiction of the defendant in the action, that the expunging
Reversed.
Dissenting Opinion
dissenting — In my opinion the most that can be said is that the court erred in permitting the plaintiffs to withdraw their election to stand on their petition, and in setting aside the judgment agaiust them for costs, and permitting them to file an amended petition. Under section 178 of the Code, quoted in the majority opinion, the court has the power at any time during the term at which it is made, or before it is signed by the judge, to amend the record, or expunge any entry therein. It necessarily retains jurisdiction of the cause and the parties while this power continues. If the court had been convinced during the term that its ruling on the demurrer was wrong, it had the power, under this provision, to set aside the judgment for costs and the order sustaining the demurrer, aud enter an order overruling it. It is held in Brace v. Grady, 36 Iowa, 352, that the court has power during the term, under this provision, to change an order already made aud recorded, when convinced that it was erroneously made. A party has no remedy by certiorari against an erroneous order or decision made while the court has jurisdiction of the cause and the