Reid v. Fillmore, 73 P. 849

73 P. 849 | Wyo. | 1903

CorN, Chile Justice.

The parties to this action were both applicants before the State Board of Land Commissioners to lease certain lands from the State of Wyoming. The board decided in favor of the right of plaintiff in error and issued a lease to him. An appeal was taken by defendant in, error to the District Court and, after a trial, that court at the March term, 1901, gave judgment in favor of defendant in error, canceling the lease before issued to plaintiff in error and directing the board to issue a lease to the defendant in error, Susan J. Fillmore. At the following September term of the District Court plaintiff in' error filed his motion, supported by affidavits, to vacate the judgment and dismiss the action, for the reason that the court had never acquired jurisdiction of such action. The- defendant in error thereupon filed a motion to strike from the files of the court the motion of plaintiff in error, for the reason that the judgment was rendered at a former term; that the relief sought should be by petition and summons issued thereon and served as in the commencement of an action, and that the court had no jurisdiction of the person of defendant in error. Upon a hearing the court sustained the latter motion and entered an order striking- the motion of plaintiff in error from the files. From that order plaintiff in error appeals to this court.

A motion to strike another motion from the files is not the proper practice. The proper method of disposing of a motion, unless perhaps for scandal or impertinence, is to consider and sustain or deny it. But the court having entertained and sustained the motion to strike, was tantamount to overruling the motion to vacate the judgment and dismiss the action, and it may be so treated in this case. (Lang v. Superior Court, 71 Cal., 491; Blemel v. Shattuck, 133 Ind., 498; Long v. Ruch, 148 Ind., 74; 14 Ency. Pl. & Pr., 171.)

In the absence of any findings or the assignment in the record of the reason for the court’s action, it may be assumed that it was for the reasons assigned in the motion to strike. The authorities are in such hopeless conflict that any discussion of them in detail would be unprofitable. But it seems to be settled that courts, by reason of their control over their own records, have the inherent power, at any time and independent of express authority conferred -by statute, to strike out, either upon their own motion or that of any part)1' in interest, • any judgment or order which is void upon its face and, therefore, a mere incumbrance to the record. And it seems to be as well settled, upon the other hand, that they have no power, after the term, to reinstate a cause, which is not retained in court for any purpose by statute or. otherwise, and reconsider their former decisions. But within these limits decisions are largely upon the special facts of each case.

It is not claimed that the proceeding -is specially authorized by statute, but it is insisted that the judgment is void, for want of jurisdiction of the subject matter, and should be stricken out of the record. The grounds for denying the jurisdiction of the District Court to entertain the appeal, as stated in the motion are two: First, that an appeal lies only from a contest before the board and that this proceeding was not a contest.

This objection is disposed of by the decision of this court in Cooper v. McCormick, 69 Pac.,301 (10 Wyo.,379), where it was held that a proceeding before the board in all respects similar to the one in this case amounted to a contest. And we see no reason to change our views upon that question, even if it should be deemed proper to pass upon, it in a proceeding of this character, a mere motion after the lapse of the term at which the case was finally disposed of.

The second objection is, in substance, that Chapter 5 of Title 9, Revised Statutes, 1899, in so far as it attempts to confer control of the school lands of .the State upon a board composed of the Governor, Superintendent of Public Instruction ' and Secretary of State only, is unconstitutional and void. By Section 13, Article 7, of the constitution, it is provided that the three officers above named and the State Treasurer shall constitute the Board of Land Commissioners, which shall have control of the leasing and disposal of the lands of the State granted, or to be hereafter granted, for the benefit of public schools. By a subsequent section of the constitution, viz., Section 3 of Article 18, it is provided that the three officers first named shall, constitute a Board of Land Commissioners, who shall have the direction, control, disposition and care of all lands heretofore granted, or to be hereafter granted, to the State. The First State Legislature provided for but one board, composed of the three officers above named, and committed to its control all lands belonging to the State. It is evident, therefore, that a consideration of the motion of plaintiff in error, upon its merits, may involve a decision by this court that this legislation is unconstitutional and ousting the board of an important branch of its jurisdiction. The legislation has been upon the statute books, acted upon by the board and acquiesced in by the people during our entire history as a State until the last session of the Legislature, and valuable interests in lands may depend upon its validity. Moreover, there is no case pending and the parties to the litigation are not before the court, except as they are attempted to be brought in by the notice of this motion; the board whose jurisdiction .is attacked are not' made parties to the proceeding, and the question of their jurisdiction was never presented to them for their decision in the case, and the decision of the District Court upon all the questions presented to it was acquiesced in by the plaintiff in error by his failure to institute proceedings in error.

By our code of civil procedure a motion is defined to be “an application for an order addressed to a court or judge by a party to a suit or proceeding, or one interested therein.” And we think it is entirely clear that, under conditions like these, it is not the office of a motion to reopen litigation, obtain a second ruling of the court upon the question finally disposed of at a former term and by an appeal from such second ruling obtain a hearing and decision in this court after having lost the right to such hearing by a failure to institute proceedings in error.

The judgment will be affirmed.

Knight, J., and Potter, J., concur.