State ex rel. Smotherman v. District Court, 153 P. 1019

State ex rel. Smotherman v. District Court

153 P. 1019 | Mont. | 1915

ME. JUSTICE HOLLOWAY

delivered the opinion of the court.

On February 3, 1915, Charles Christiansen moved the district court in and for Blaine county to set aside his default which had been entered on March 27, 1914, in an action pending in that court, wherein W. D. Smotherman was plaintiff and Charles Christiansen defendant. Eelief was sought upon the ground that the default resulted from inadvertence and excusable neglect. The motion was granted on April 13, and this proceeding was instituted to have the order annulled.

[1] Section 6589, Eevised Codes, provides: “The court may, in furtherance of justice * * * upon such terms as may be just, relieve a party or his legal representative from a judgment, order or other proceeding, taken against him through his mistake, inadvertence, surprise or excusable neglect; pro*496vided, that application, therefor be made within reasonable time, bnt in no case exceeding six months after such judgment, order or proceeding was taken. ’ ’ This statute has received consideration from this court in many cases, but in no other instance has there been a more succinct exposition of its meaning than in State ex rel. Happel v. District Court, 38 Mont. 166, 129 Am. St. Rep. 636, 35 L. R. A. (n. s.) 1098, 99 Pac. 291, where it is said: “Under the statute (Revised Codes, sec. 6589), the motion in such cases must be made within a reasonable time after the date of the entry of judgment, but in no case exceeding six months, and the statute is the limit of the court’s power in such cases. After the expiration of the time limit fixed therein, the power of the court over the judgment absolutely ceases, and it is without jurisdiction to vacate or modify it.”

Because the motion to set aside the default was not made until more than ten months after the default was entered, the trial court was without jurisdiction to grant the order of April 13, 1915, and that order is accordingly annulled.

Order annulled.

Mr. Chief Justice Brantly and Mr. Justice Sanner concur.