91 P. 442 | Or. | 1907
On Appeal From Order Refusing to Modify Decree Entered on Mandate.
1. This cause was tried in the lower court in June, 1901, and appeal taken from the decree therein, and on August 8, 1904, decree was rendered in this court (Krause v. Oregon Steel Co. 45 Or. 378: 77 Pac. 833), which, upon mandate, was entered in the lower court. Afterward, on May 12, 1905, the defendant, by motion and affidavits, applied to the lower court to have an execution theretofore issued on said decree recalled, and for an order interpreting and modifying, or correcting, said decree in accordance with equity and the intention of that court. The lower court denied the motion, for the reason that it was without jurisdiction to entertain it, from which this appeal is taken.
Counsel for the defendant insists that the lower court had jurisdiction to hear and determine the motion, as it only called for a correction of the decree of that court. The vice of this position is: Counsel assumes that, as the decree below was affirmed in this court, it rests now upon the original decree entered by the lower court; but it is not now the decree of the lower court, except for purposes of enforcement. The cases cited by counsel for defendant in support of its motion only discuss the power of the court over its judgments after the adjournment of the term at which they were rendered, viz., corrections of clerical errors and nunc fro tunc entries to make the judgment conform to that pronounced by the court; but they can have no application in such a case as this, and .are not authority as to the power of the circuit court to modify a decree of the supreme court, which, upon mandate, is entered there.
In Welch v. Keene, 8 Mont. 305 (21 Pac. 25), cited by defendant, the appeal was dismissed, which left the original decree rendered in the court below the decree in the case unaffected by the appeal, and is therefore not in point. Elliott, Appellate Procedure, § 576, says: “No modification of the judgment or decree directed by the appellate tribunal can be made by the trial court. No provision can be ingrafted upon it, nor can any be taken from it.” And in Section 579, in speaking
On Motion to Recall Mandate.
Opinion by
This suit was commenced November 6, 1897, for the purpose of enjoining defendant from' maintaining a dam in the Tualatin River. The decree of the lower court therein was affirmed by this court on August 15, 1904: Krause v. Oregon Steel Co. 45 Or. 378 (77 Pac. 833). The decree of the lower court provides that the dam be abated;
“save and except that portion thereof which extends from the lowermost part of said dam upwards to a height of 24 inches, that is to say * * excepting the lower 24 inches thereof beginning from the lowermost portion thereof.”
“That said dam can be maintained at a height of 24 inches-above the lowermost portion thereof without injury or damage to the lands of plaintiff, and that the injury above mentioned lias been caused by erecting and maintaining said dam to a height of more than 24 inches above the lowermost portion thereof.”
Thus a decree for a dam of greater height would not have been supported by the findings. Mr. Justice Wolverton finds as facts that the dam was built of sawed timbers, 12x12 inches, placed one above the other, and, at the time of the trial, consisted of three tiers of such timbers, with a decking of about four inches, and that this created the damage complained of; and he finds that this dam would create some rise in Rock Creek, upon which plaintiff’s lands are situated—from a foot to a foot and a half above its normal condition—and then says: “At what particular height it can be maintained without injuring him is not so clear. Relatively speaking, a two-foot dam would affect Rock Creek but slightly, and we entirely agree with the judgment of the learned trial court that it ought to be abated to that height from the lowermost portion of the bed of the stream.” Thus it will be seen that the decree reduces the dam only by removing from it one timber and the decking as it stood at the time of the trial. It is also plain that no change can be made in the decree without a retrial of the suit; nor are we convinced that a retrial would result differently.
2. The supreme court, equally with other courts, is subject to the rule .that a court loses jurisdiction of a cause in which final decree has been rendered by lapse of the term. It has power after the term to recall the mandate to correct a misprision of the clerk, settle the cost-bill, or to determine any