5 S.D. 504 | S.D. | 1894
On the 21st day of April, 1893, upon an affidavit, the sufficiency of which is not questioned, an order was made by the circuit court of Minnehaha county, for the examination, in proceedings supplementary to execution, of the respondents, Guenthner & Haar, upon allegations of their indebtedness to J. & H. Reede, defendants in execution. Upon such examination in open court, in which both parties, by their attorneys, were present and participated; the court made and filed findings of fact, upon which it made and entered an order requiring the said Guenthner & Haar to pay over to respondents the amount to which the court found they were indebted to the execution defendants. This order was made and entered July 13, 1893. On the 15th day of August, 1893, Guenthner & Haar made application to the court on an order to show cause to set aside the order of July 13, 1893. This application was denied, and an order was made and entered refusing the same. Both these orders were plainly and confessedly made in and by the ctjurt, and not by the judge. From the latter order Guenthner & Haar appealed.
Respondent moves to dismiss the appeal, on the ground that the first order was not appealable, and that an order re
If the order of July 13th, were simply erroneous, an appeal from the subsequent order refusing to vacate it would be dismissed under the rule invoked by respondent; but as we intimated in Vert v. Vert, (S. D.) 54 N. W. 655, there seems to be no good reason for holding such rule imperative, where the first order was one which the court or judge had no jurisdiction to make, although the rule is often broadly stated without such qualification. An order erroneous, and therefore voidable becomes established and operative as a valid order if not attacked within the time prescribed by statute, but a void order is a nulity, and always remains so. No rights can ever be built upon it. Neither party can be prejudiced by striking such an order from the records, for it is binding neither upon the court nor the parties. Every court of general jurisdiction has inherit power to purge its records of such an order. Black, Judgm. § 307, and cases cited; Freem. Judgm. § 98, and cases cited. A party against whom such an order or judgment is entered, has a right to have it vacated, upon proper application to the court which made or rendered it. Black, Judgm. § 318, and cases cited. The court having made the order of July 13th without jurisdiction, it should have vacated it on appellant’s motion. The order refusing to do so is reversed, and the case remanded for action by the circuit court in accordance with this opinion. All the judges concur.