Thе change made by the court in the order, striking out the word “ Dodge” and inserting in place thereof the word “Winnebago,” wаs equivalent to a vacation of the order changing the place of trial to Dodge county, and the making оf a new order directing the cause to be sent to Winnebago county for that purpose, and the question thus presented is, whether the court had the power 'at the same term and before transmission, but whilst the cause remained in it, thus tо vacate an order respecting the place of trial, and to make a new order in its stead ? We arе clearly of opinion that the court had such power. The decisions of this court cited by counsel for the аppellant, do not touch the question, but were made in cases differing entirely in their character. The question hеre is as to the power of the court to vacate, modify or set aside an order at the same term at which it was made, and nоt a question as to the effect of an order made at a previous term as res adjudicate and conclusive, when the same motion is renewed, or attempted to be, without leave reserved at a subsequent term, nor one which relates to the power of thе court to vacate or set aside judgments after the term at which they were rendered. The cases in this court in which the рower has been denied, were all of the latter kinds. Such was the case of Kabe v. The vessel “Eagle,”
But with regard to applications and motions coming up during the same term, the power of the court to set aside, modify or change its orders and judgments has never been denied. On the contrary, both in this respect as well as the other, this court has adhered strictly to the common law rules, as will be seen from the case of The Ætna Life Insurance Co. v. McCormick,
In this case, therefore, the circuit court of Fond dn Lac county, in which the action was pending, had the power to change the order directing the trial to be had in Dodge county, and to substitute Winnebago cоunty in its place, unless there be something in the order for a change of Tenue distinguishing it from all other orders. It is said that the court having once made an order thereupon, lost all jurisdiction over the cause, although the same had nоt been removed, except that it might perhaps aid in the removal which had thus been directed. The same sophistical and unsound course of reasoning would deprive the courts of a large part of their power to correct mistakes and remedy errors which may have intervened to the detriment of law and justice, and to the greаt injury of suitors. An action once dismissed could never be re-instated, and so of an appeal, which could never be restored; because, in either case, there would be no action or appeal pending when thе application to re-instate or restore was made. The order changing the venue could not be interfеred with or disturbed, notwithstanding the action was still present in the court, and notwithstanding the circuit court of Dodge county had аcquired no actual jurisdiction. Such is the argument.
A satisfactory answer seems to be, that the action yet remaining in the court, so that jurisdiction, in fact, was not parted with, the court possessed the same power and authority over that order as over any other of its own making under like circumstances. Pending the dismissal of an action on an aрpeal, it may, in some sense, be true, that the court is without jurisdiction of the action or appeal, and yet the order of dismissal still remains in the court subjеct to its powers of revision and correction whenever a proper case is presented. Within the rules prescribed by law, the oourt may operate upon and change its own order. It may revoke or annul it, and in thаt way jurisdiction of the action or appeal may be restored. The
By the Court. — Order Affirmed.