Brewster v. Springer

• Decision Date: 18 January 1916
• Citation: 79 Or. 88,154 P. 418
• Parties: BREWSTER v. SPRINGER, COUNTY JUDGE, ET AL.
• Court: Oregon Supreme Court

154 P. 418

79 Or. 88

BREWSTER v. SPRINGER, COUNTY JUDGE, ET AL.

Supreme Court of Oregon

January 18, 1916

Appeal from Circuit Court, Crook County; T. E. J. Duffy, Judge.

Action by George H. Brewster against G. Springer, County Judge, and J. F. Blanchard and another, County Commissioners. Judgment for plaintiff, and defendants appeal. Dismissed.

M. R Elliott and Willard H. Wirtz, both of Prineville, for appellants. Jay H. Upton, of Prineville, for respondent.

MOORE, C.J.

The plaintiff, George H. Brewster, by consideration of the circuit court of the state of Oregon for Crook county obtained a judgment against the defendants, G. Springer, as county judge of that county, and J. F. Blanchard and H. J Overturf, as county commissioners thereof, and they appealed. Thereafter, but during the term of court at which the judgment was rendered, an order was made by the trial judge setting aside the judgment on the ground that no findings of fact or of law had been made. Thereupon such findings were made and filed, and predicated thereon judgment was given as in the first instance, and the defendants again appealed. The plaintiff's counsel moves to dismiss the first appeal because the judgment thus undertaken to be reviewed has been vacated. The defendants' counsel resist the application contending that, the first appeal having been duly perfected, the trial court thereby lost jurisdiction of the cause, and was powerless to set aside the judgment.

In Smith Typewriter Co. v. McGeorge, 72 Or. 523, 525, 143 P. 905, 906, in referring to section 548, L. O. L., it is said:

"Under the provisions of this statute, the right of a circuit court to set aside a judgment and grant a new trial can be exercised only when in the trial of a cause an error has been committed which is so prejudicial to the defeated party that the judgment rendered against him would, if allowed to remain in force, be reversed on appeal. When the trial court, within the time allowed, discovers that such a mistake of law has been made, it may sua sponte, or on motion, correct the error by setting aside the judgment and granting a new trial, thereby avoiding the necessity of and the expense that would be incurred by an appeal."

To the same effect, see, also, Rudolph v. Portland Ry., L. & P. Co., 72 Or. 560, 144 P. 93; Frederick & Nelson v. Bard, 74 Or. 457, 145 P. 669.

Notwithstanding an appeal from a judgment may have been taken and perfected,...