Boulter v. Cook

• Decision Date: 14 April 1925
• Docket Number: 1225
• Citation: 32 Wyo. 461,236 P. 245
• Parties: BOULTER ET AL v. COOK [*]
• Court: Wyoming Supreme Court

236 P. 245

32 Wyo. 461

BOULTER ET AL v. COOK ^[*]

No. 1225

Supreme Court of Wyoming

April 14, 1925

Error to District Court, Fremont County; Cyrus O. Brown, Judge.

32 Wyo. 461 at 475.

Original Opinion of April 14, 1925, Reported at: 32 Wyo. 461.

Petition for rehearing denied.

BLUME Justice. POTTER, C. J., and KIMBALL, J., concur.

OPINION

ON PETITION FOR REHEARING

BLUME Justice.

We held in the original opinion herein that the judgment of July 23rd, 1919 could not be opened pursuant to motion and notice thereof served upon the attorney of record, for the reason that the proceedings to open said judgment disclose that they were not based on any irregularity contemplated in subdivision 3 of section 5923, W. C. S. 1920, and that whatever relief might have been granted was under subdivision 7 of the same section, in which case a petition must be filed and a summons must be issued and served as in the commencement of an action, which was not done in this case. Counsel for respondent argue that the court, when it entered its orders of June 2 and 18, 1920, opening up said judgment and proceeding to hear the case anew, had jurisdiction to open up and vacate judgments; that jurisdiction is the power to decide, rightly or wrongly; that in this case the court determined that the case before it was one involving an irregularity contemplated by subdivision 3 aforesaid, and that this decision is final in a collateral attack, as in this case, though such decision was wrong. The argument is specious but unsound. The line between jurisdiction and want thereof, is, it is true, sometimes shadowy. But the court cannot create its own jurisdiction. There must in any event always be some foundation upon which to rear a superstructure. The court cannot create the foundation by judicial fiat. It cannot declare white to be black, or black to be white; it cannot declare that a summons has been issued, when the facts are otherwise; it cannot say that a petition has been filed, when that is not in fact true. While the court must necessarily decide in the first instance whether it has jurisdiction or not, its decision that it has, when none in fact exists, and that fact appears of record, is of no avail. If that were not so, no judgment could ever be attacked collaterally, no matter how glaringly the face of the record would show such want of jurisdiction. The power of a court to open up judgments after the term, is except in cases when a common law remedy may be applicable, derived from the statute. That statute (sec. 5923 W. C. S. 1920 etc.,), gives the court power to open up a judgment for irregularity when a motion is filed and notice thereof is given. It gives the court power to open up judgments for accidents, mistake etc. only after a petition is filed and summons is issued and served. Counsel would evidently have us believe that in no case is a petition or summons necessary, (when the proceeding is attacked collaterally) if only the court decides that it is not the kind of a case that requires them. That surely cannot be true, and we do not believe that any court would so hold. In the case at bar the face of the proceedings show that the motion aforesaid was not based upon an irregularity as contemplated by subdivision 3 of section 5923, W. C. S. 1920 aforesaid, and the trial court's decision to the contrary could not change that fact.

The judgment of July 23, 1919 accordingly could not be opened pursuant to motion and notice of the motion served upon the attorney of record. If that judgment could be opened at all, it should have been done by...