91 P.2d 403 | Mont. | 1939
The charter of the Beaverhead Ranch Company, a Montana corporation, expired by limitation on September 24, 1927, and its then directors, Lewis Penwell, C.B. Witter, H.H. Pigott, Mathias Staff and R. Lee Word, by operation of law became trustees of its assets for the benefit of its creditors and stock-holders. From the above date to January, 1934, such trustees in the operation of the properties became rather heavily indebted to the Union Bank and Trust Company, a corporation, and on January 19, 1934, such trust company, under the liquidating statutes of the state, began an action in the district court of the first judicial district, county of Lewis and Clark, against the five trustees by filing a complaint and issuance of summons, and all such trustees, defendants, appeared in the action and answered, and the case at issue was heard, and after hearing, with the consent of four of such trustees, trustee R. Lee Word objecting, H.H. Pigott was appointed receiver of such defunct company, with the powers and duties prescribed in the *153 order of his appointment. The receiver qualified and then entered upon the discharge of such duties.
On January 17, 1938, R. Lee Word, one of the trustees and defendants in the action, filed a motion therein to abrogate the order appointing Pigott receiver, on the grounds and for the reasons stated in the motion, a copy of the motion being attached to the petition in these proceedings. On February 9, 1938, the court granted leave to submit such motion on briefs, and all of counsel were allowed time to submit their briefs. In the minutes of the court of May 23, 1938, appears the following entry: "In this action the motion of R. Lee Word to abrogate the order appointing H.H. Pigott receiver is hereby denied."
On January 12, 1939, without any notice to the plaintiff in such action, the relator herein, nor to the receiver, the judge of such court, apparently on its own motion, made the following order: "In this action the order of May 23, 1938, denying the motion of R. Lee Word to abrogate the order appointing H.H. Pigott receiver, having been inadvertently made, it is ordered that said order of May 23, 1938, be and the same is hereby expunged from the record." This last order was duly entered in the minutes, which were later approved by the court.
Writ of certiorari was issued by this court, and return made thereto. This proceeding is to review the action of the district court of Lewis and Clark county, and George W. Padbury, Jr., one of its judges, in making the order last quoted.
No contention is here made that relator has a right of appeal from such order, or any plain, speedy and adequate remedy other than certiorari, and it seems proper to assume that it has not. (State ex rel. Hahn v. District Court,
Summarized, the reasons assigned in the motion to quash[1] interposed by respondents and urged in their brief, is that the application for the writ is not made upon affidavit by, nor in behalf of, "a party beneficially interested," as required by *154
section 9838, Revised Codes of 1935. The petition for the writ is verified positively by the president of relator bank, which meets the requirements of section 9838, and was so determined by this court before the issuance of the writ. (State ex rel. FirstTrust Savings Bank v. District Court,
It appears from the return, and not controverted, that the bank, relator herein, was the plaintiff in an action against the trustees of a defunct corporation, wherein an application was made by it and a receiver duly appointed. The proceedings originate from an order made in such action. The relator was a[2] party to such action and could make the application. (11 C.J. 135.) State ex rel. Examining Trial Board v. Jackson,
Respondents, in a well prepared and extensive brief, contend that the order appointing Pigott receiver is void. Such order was made on May 12, 1934. It was an appealable order. (Sec. 9731, Rev. Codes.) In due time trustee Word filed notice of appeal, and proceeded to perfect an appeal to this court on behalf of himself and of other trustees. Motion was filed on behalf of the plaintiff bank, this relator, to require Mr. Word to produce his authority to appear as an attorney for all such appellants. In this he failed, and this court ordered a dismissal of the appeal. (Union Bank Trust Co. v. Penwell, *155
The order made May 23, 1938, denying the motion to abrogate the order appointing the receiver was itself an appealable order, under subdivision 2 of section 9731. The sixty-day period for appeal soon expired. No appeal was taken. The order expunging such last order was made on January 12, 1939. The return shows that no notice was given by the clerk to the attorneys of the making of such order of May 23d. However, the return and the briefs are silent on whether or not the attorneys or the parties had actual notice. It might be they all were indifferent to the court's order refusing to abrogate the receivership; but when the expunging order was made on January 12, 1939, someone moved quickly, for the petition for the writ here issued was filed on January 18 and the writ issued the same day. The order of May 23d was made after lengthy deliberation, briefing and consideration. The receivership continued. Valuable property rights were involved. The January court order expunged the former order made by it. Respondents' attorney calls this a purge of an inadvertent minute entry. While the words "purge" and "expunge" may have about the same meaning, because of rather *156 unpleasant recent events in national and international affairs, classed as "purges," we will use the same word used by the trial court.
Coming to the point as to the inherent right or power of a[3] court to expunge matters from its own records, respondents contend that every court has such power to make its records speak the truth, and cite State v. Turlock,
That orders made by a court through mistake, inadvertence, want of sufficient consideration, oversight or otherwise, where they affect the substantial rights of litigants, are judicial errors and cannot be corrected or removed by summary action of the court which made them, is supported by the following decisions: *157 State ex rel. Smith v. District Court,
Section 9187, Revised Codes of 1935, has to do with mistake,[4, 5] inadvertence, surprise or excusable neglect on the part of a party to the action or proceeding, and certainly does not apply to nor authorize the correction of judicial error. Anyway, more than six months had expired between the time the order sought to be expunged was made and the date of the expunging order, so that even if this section applied, the court had lost jurisdiction to act by virtue of it. (State ex rel. Smotherman
v. District Court,
The trial court in its expunging order of January 12, 1939, exceeded its jurisdiction. Respondents' motion to quash the writ is denied, and such order is annulled.
MR. CHIEF JUSTICE JOHNSON and ASSOCIATE JUSTICES ANGSTMAN, ERICKSON and STEWART concur.
Rehearing denied June 12, 1939. *158