5 Alaska 373 | D. Alaska | 1915
It may be conceded from the authorities cited by counsel for respondent that the default judgment entered by the commissioner is voidable only for error in the service of the writ, and not void, on the ground that the statutory notice was not given as provided in section 1780, Alaska Code, and that, unless the commissioner had the power to set aside or vacate the default judgment, said judgment may be set up in bar of the second action brought by the appellant in the commissioner’s court, and that the commissioner erred in overruling the demurrer filed by the respondent herein, and that his action should be reversed and the demurrer sustained by this court. Kerr, Sheriff, etc., v. Murphy et al., 19 S. D. 184, 102 N. W. 687, 69 L. R. A. 499, 8 Ann. Cas. 1138; Gird v. Morehouse, 2 Or. 53; Lindsay v. Tansley, 63 Hun, 635, 18 N. Y. Supp. 317; American Digest, Century Ed. vol. 31, p. 1182.
The respondent herein demurs to the appellant’s reply, which admits the allegations thereof that the commissioner did in fact attempt to set aside and vacate the judgment by default on the same day that the said judgment was entered, and upon an examination of the trial book in the commissioner’s office I find that he did mark or write across the entry of the judgment, on the same day on which the same was entered, that the same was set aside or vacated. The question for this court now to determine is whether or not the commissioner had the power by statute or otherwise to1 set aside or vacate said default judgment. I have made the most diligent search to find some authority that would justify this court in sustaining the action of the commissioner, because of the otherwise hard rule and its application in this 'case. It is the universal rule with regard to courts of inferior jurisdiction, such as commissioners’ courts here and justice of the peace courts,
It may be true that the application of the rule may work a hardship in some cases; but we must admit its wisdom as applied to courts of inferior jurisdiction, and the courts have so approved it, leaving to the legislative discretion the advisability of changing or loosening it up. While I have not found any case which stands precisely on all fours with the case at bar, in that the judgment was actually entered and attempted to be set aside on one and the same day, the courts and the text-writers appear to agree that when a complete judgment is once entered, or even announced, the door is closed from that moment against its being again opened.
The case of McCoy et al. v. Bell, 1 Wash, 504, 20 Pac. 595, comes nearer expressing the unbending nature of the rule, and is like the case at bar in this respect that the judgment and a motion for a continuance were made and entered on the same day. The court said in this case:
“The justice, in Ms return to the writ, says: ‘As to the third ground of error alleged in said affidavit the facts are these: At 11 o’clock plaintiff's attorney, finding no papers on file for defendants, arose before me, and said “I now demand judgment.” To this, shortly afterwards, the said agents, though not known to me at the time to be such, made some objection, and I then said I would have to render judgment and the said agents said they did not think I had grounds for doing so, and then plaintiff and his attorney departed, and then I again said, “I will have to render judgment,” and referred said agents to section 1781 of the Code of Washington Territory.’ This court holds that this was a rendering of a judgment by the justice, and that he was simply doing what he was required to do by law. Having performed this duty, he at once lost all control over said judgment. He could neither open it up, change, or modify it. His judicial acts and power over said judgment were exhausted forever the moment he rendered the judgment, and all his acts thence*377 forward in regard to said judgment were and could only tie ministerial. It follows, therefore, that all acts of the justice thereafter in regard to continuing the case, etc., were mere nullities. After he had rendered judgment—as we have held he did do upon the demand of plaintiff—he should proceed within the next three -days to enter the same.”
See Griffin v. Pitman, 8 Or. 342; Dunnagan v. Shaffer, 48 Ark. 476, 3 S. W. 522; Hawes, Jur. § 32.
The case of McCoy et al. v. Bell, supra, in its essential facts and the language of the court in the opinion, illustrates the undeviating view taken and the tenacity with which the courts and text-writers generally have held to the rule that an inferior court cannot go beyond the statutory powers under which it acts. For these reasons, the demurrer is sustained, and an order may be entered in accordance with this opinion.