111 P.2d 810 | Mont. | 1941
This is a proceeding in review by which relatrix, plaintiff in the court below, seeks to annul an order contended to have been made without jurisdiction by the district court on January 18, 1941, vacating an order rendered on May 28, 1940, taxing plaintiff's costs on retrial and striking defendant's bill of costs on appeal from a prior trial.
In Vaughn v. Mesch,
The defendant first learned of this disposition of her cost bill for the appeal costs on August 13, 1940, and on August *555 20 gave notice of a "motion for new trial on motion to tax costs." Subsequently on September 20, 1940, she gave notice of a "motion for an order of court to vacate and set aside order taxing costs and for a rehearing on motion to tax costs." The first motion was abandoned, apparently because our statute (sec. 9395, Rev. Codes) limits new trials to issues of fact, and on January 18, 1941, the respondents made an order purporting to grant the second motion to vacate the order of May 28, 1940, and authorize a rehearing on the two motions. It is this order of January 18, 1941, which the relatrix, plaintiff in the district court, attacks by this proceeding.
The respondents' return is to the effect that the order of May[1] 28, 1940, is erroneous, and that the intention in granting the motion was to remedy the error. The respondents also by what they denominate "cross petition" ask that if this court grants a peremptory writ annulling the order of January 18, 1941, it also issue a peremptory writ annulling the order of May 28, 1940, so that the respondents may reconsider the motion to strike defendant's cost bill. It seems clear that the latter request can in no event be granted since the record is insufficient as a basis for such order and the respondent court and judge are not in a position to request such remedy as against their own order.
No contention is made that the order of May 28, 1940, was entered unintentionally, inadvertently or without jurisdiction, or that it is void; and the only question is whether the trial court, after making a final order of the kind, may set it aside solely on the ground that it is erroneous. If so, such an order never will become final and the jurisdiction of the trial court will continue indefinitely with what amounts to a right in the dissatisfied party to appeal to the trial court from its own orders. Such a result cannot be allowed since the final actions of courts must become conclusive, subject only to the constitutional and statutory provisions for new trials or for reviews by an appellate court.
It is well settled that judgments or records of trial courts[2] may be modified or amended to remedy errors in certain *556
respects, but only to make them express what was actually decided or to grant the relief originally intended, and not to set aside what has been determined nor to correct a judicial error or make a new adjudication (State ex rel. Kruletz v. District Court,
The order of January 18, 1941, the application for that order,[3] and the respondents' return to the alternative writ in this proceeding, all demonstrate clearly that the purpose of the order was not to correct the record to show what was actually decided or intended to be decided, but rather to reconsider an adjudication which had become final so far as the trial court was concerned. We must conclude therefore that the order of January 18, 1941, was made without jurisdiction and is void.
Whether the order of May 28, 1940, was void; or whether it was erroneous; or, if not void, what effect, if any, it had upon defendant's execution for her appeal costs on the remittitur, are not before us in this proceeding. Those questions may be presented if the plaintiff in some manner attacks the defendant's writ of execution.
What we shall say here with reference to those phases of the matter is not intended as laying down the law applicable to them, but only to suggest the possible remedies, in view of the fact that this case has already required two trials in the district court and an appeal and this proceeding in the supreme court.
It would seem that the order of May 28, 1940, was erroneous, being based as it was on Lloyd v. City of Great Falls,
It seems advisable to call attention to the fact that this[5] court held in Gahagan v. Gugler,
But the order taxing appeal costs becomes a part of the[6-8] judgment ordered by the remittitur (In re Williams'Estate, supra), and not a part of the judgment upon the retrial; for section 9805, Revised Codes, gives the successful appellant the immediate right to a writ of execution without regard to a subsequent retrial of the cause. It thus becomes in effect a part of the judgment of this court, over which the district court has no jurisdiction except to enforce it or to determine disputed items (In re Williams' Estate, supra; In re Jennings' Estate,
This court held in State ex rel. Hurley v. District Court, supra, State ex rel. Riddell v. District Court,
In any event, the order of January 18, 1941, is void and must be annulled. Let judgment issue accordingly.
ASSOCIATE JUSTICES ANGSTMAN, ERICKSON, ANDERSON and MORRIS concur.