Lees v. Freeman, 19 Utah 481

19 Utah 481 | Utah | 1899

Miner, J.,

after stating the facts, delivered the opinion of the court.

Section 3256, C. L. U., 1888, as amended, provides among other things, that the court may ‘ ‘ upon such terms as may be just, relieve a party or legal representative from a judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect; and when, for any reason satisfactory to the court, or the judge thereof, the party aggrieved has failed to apply for the relief sought during the term at which such judgment, order, or proceeding complained of was taken, the court, or the judge thereof in vacation, may grant the relief upon the application made within a reasonable time, not exceeding six months after the adjournment of the term.” , '

The original judgment was ordered entered July 12, 1897. The petition to modify the judgment was filed February 19, 1898. The judgment was corrected and modified September 12, 1898. The term at which the judgment was entered ended on the second Monday of September, 1897. The order modifying the judgment and granting relief was not made until after the expiration of six months from the adjournment of the term at which the judgment was rendered.

The application to correct or modify the judgment was not made until after the expiration of the term at which the judgment was entered. Under such circumstances the court had no jurisdiction over the subject matter, and his action in modifying the judgment was illegal.

The record presents a strong argument in favor of the equitable action of the court, but our statute does not give jurisdiction under the circumstances shown. In a case such as presented here, a bill in equity is the proper remedy by which all the parties may be brought before the court, and where issues may be regularly joined and tried on all the facts connected with the transaction. This court has so held on several occasions. Elliott v. Bastian et al., 11 Utah, 452; Benson v. Anderson, 14 Utah, 334; Blyth v. Swenson (dissenting opinion), 15 Utah, 369, and cases cited; Fisher v. Emerson, 15 Utah, 517; Lapham v. Campbell, 61 Cal., 296: People v. Harrison, 84 Cal., 607.

The judgment and-findings as originally entered should stand unless corrected by proper proceedings commenced for that purpose.

The judgment and order appealed from are reversed with directions to the District Court to set aside the order and judgment appealed from, modifying the judgment and findings as originally entered.

Appellant is entitled to costs.

Bartch, C. J., and Basein, J., concur.