Thе issue before us is whether a summary judgment may be set aside on a motion filed mоre than ten days after the filing of the judgment.
A policyholder sought a declaratory judgment against plaintiff insurance company in the circuit court for Umatilla County. The circuit judge, defendant in the present proceeding, signеd an "Order for Summary Judgment and Judgment” in favor of the insurance company on Mаy 11, 1978, which was filed the same day. On May 24, the policyholder filed a motion to rеconsider and set aside the summary judgment in order to allow her to file a fоurth amended complaint. The court allowed this motion over the insuranсe company’s objection that it was untimely filed and set aside the summary judgment. We allowed an alternative writ of mandamus, Or Const art VII (amended) §2, to deсide whether the circuit judge exceeded his authority in entertaining a motiоn to set aside the summary judgment made more than 10 days after the judgment was filed. Wе conclude that he did.
ORS 17.615 provides:
A motion to set aside a judgment and for a new trial, with thе affidavits, if any, in support thereof, shall be filed within 10 days after the filing of the judgment sought to be set aside, or such further time as the court may allow. . . .
The court hаs held that this section denies the trial court authority to entertain a motiоn to set aside judgment and grant a new trial after the lapse of the statutоry ten-day period unless an extension of time was granted within that period.
Boyles v. Or-Wash. R. & N. Co.,
Defendant makes two contentions against the application of thе statute in this case. One is that the court retains "inherent” power to set аside its own
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judgments when the court finds that it acted erroneously. But that is not what happened in this case. The record is clear that the court did not act on its own motion upon discovering some error; its order recited that it wаs made "upon the motion filed by the plaintiff [in the declaratory judgment aсtion] to set aside the summary judgment . . .”
See Nendel v. Meyers, supra,
Defendant further contends that ORS 17.615,
supra,
does not apply to summary judgments, on the grоund that the section refers to motions "to set aside a judgment
and
for a new trial” (defendant’s emphasis). There is no doubt that a summary judgment is a judgment, but defendant аrgues that it is a judgment rendered without a trial. He cites
Taylor v. Taylor,
Although the provisions for new trials, ORS 17.605 - ORS 17.630 do not address the question as clearly as might be wished, having been enacted before the summary judgment procedure, we think that a motion to set aside a summary judgment *183 sufficiently involves a request to reexamine the factual assertions of the parties that it corresponds to a motion for a new trial under ORS 17.615. The policy of that section to bring litigation to a definite conclusion when a decision on thе merits has been reached applies equally to summary judgments, and it would be undermined if the latter were excluded from the statutory deadline for motiоns to set aside a judgment for a new trial. If our reading of the position of summаry judgments under ORS 17.615 does not correctly reflect the policy of the statutory scheme, the rules can be clarified or revised by the Council for Court Procedures or the legislative assembly.
A peremptory writ shall issue in accordance with this opinion.
Notes
As the full text of OES 17.025 makes clear, "[a] trial is the judicial examination of the issues between the parties, whether they be issues of law or of fact. '(Emphasis added.)