Krause v. Oregon Steel Co., 91 P. 442

Krause v. Oregon Steel Co.

91 P. 442

Or.

1907

Check Treatment

On Appeal From Order Refusing to Modify Decree Entered on Mandate.

*89Opinion by

Mr. Justice Eakin.

1. This cause was tried in the lower court in June, 1901, and appеal 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 thе lower court. Afterward, on May 12, 1905, the defendant, by motion and affidavits, applied to the lower court to have an exeсution theretofore issued on said decree recalled, and for an order interpreting ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍and modifying, or correcting, said dеcree 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 jurisdictiоn 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 decreе 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 mаke the judgment conform to that pronounced by the court; but they can have no application in such a case аs 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 renderеd 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 сan 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 *90of affirmance of judgments at law, he says: “This confirmation operates to a limited extent as a merger, inasmuch as it concludes the trial court and the parties, and absolutely precludes them from modifying or abrogating the judgment affirmed. The authority of thе trial court as to all matters involved in the appeal and adjudicated by the judgment there rendered is at an end.” In the case at bar, after findings and decree by the lower court, the suit was appealed, and the cause tried anew here uрon the law and facts. This court rendered its own decree thereon, which, upon mandate of this court, was entered in the lower court for enforcement, and the original decree rendered by the circuit court thereby became functus officio, and the decree of this court is final, and not within the power of the lower court to change or modify. Therefore the lower cоurt was without jurisdiction to entertain the motion, and the order denying it is affirmed. Affirmed.

92 Pac. 810. Mr. Stewart Brian Linthicum and Mr. John Couch Flanders for the motion. Mr. Cicero Milton Idleman, contra. Decided 17 December, 1907.

On Motion to Recall Mandate.

Opinion by

Mr. Justice Eakin.

This suit was commenced November 6, 1897, for the purposе of enjoining defendant from' maintaining a dam in ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the Tualatin River. The decree of the lower court therein was affirmed by this court оn 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 inchеs thereof beginning from the lowermost portion thereof.”

*91This court' (opinion by Mr. Justice Wolverton), after a thorough review of thе evidence, grants a similar decree, and it is claimed now by this motion that the decree of the lower court ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍was intended tо permit the dam to be maintained to such height as would raise the water two feet above low water. The fifth finding of fact by the lоwer court is in the following words:

“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 greаter 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, plaсed one above the other, and, at the time of the trial, consisted of three tiers of such timbers, with a decking of about four inсhes, and that this created the damage complained of; and he finds that this dam would create some rise in Rock Creek, uрon 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 Creеk 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; nоr 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 *92other matter relating to its enforcement, but not'to qualify or modify that which the court has once finally determined: 1 Black, Judgments, 153, 154; Harvey’s Heirs v. Wait, 10 Or. 117; Dray v. Bloch, 29 Or. 347 (45 Pac. 772). Thе relief sought here is not to make the entry conform to the decree actually rendered, but to change its substance аnd effect, and is beyond the power of the court; and the motion to recall the mandate is denied. Affirmed: Motion Denied.