First Christian Church of Medford v. Robb

• Court: Oregon Supreme Court
• Writing for the Court: BURNETT, J.
• Citation: First Christian Church of Medford v. Robb, 69 Or. 283, 138 P. 856 (Or. 1914)
• Decision Date: 10 February 1914
• Parties: FIRST CHRISTIAN CHURCH OF MEDFORD v. ROBB ET AL.

138 P. 856

69 Or. 283

FIRST CHRISTIAN CHURCH OF MEDFORD v. ROBB ET AL.

Supreme Court of Oregon

February 10, 1914

Appeal from Circuit Court, Jackson County; F. M. Calkins, Judge.

Action by the First Christian Church of Medford against C. Robb and others. From a judgment for plaintiff, defendant the Massachusetts Bonding & Insurance Company appeals. Appeal dismissed.

At the trial of this action on April 10, 1913, and during the production of testimony for the plantiff, it took a voluntary nonsuit. On May 10, 1913, based upon affidavits, the plaintiff moved to vacate the judgment and reinstate the cause for trial. On the day last mentioned the court heard arguments for both parties, reserved its judgment, and on July 10, 1913, entered an order allowing the motion, vacating the judgment, and reinstating the cause for hearing. From this order the defendant appeals, and the plaintiff moves to dismiss the appeal for want of jurisdiction of this court because the judgment appealed from is not a final judgment.

Peters & Powell, O. L. Price, and D. P. Price, all of Portland, and H. K. Hanna, of Jacksonville, for appellant. Boggs & Wilson and Mulkey & Cherry, all of Medford, for respondent.

BURNETT J.

At the time of the trial ended by the nonsuit, the terms of circuit court were held in Jackson county on the fourth Monday in March, the first Tuesday after the first Monday in September and the second Monday in December. The rule is laid down in Ex parte Harrell, 57 Or. 95, 110 P. 493, that a court once convened in regular term continues open until it has adjourned sine die, or the term lapses by the commencement of a new one lawfully appointed. The motion to vacate the judgment of nonsuit was filed during the term at which the judgment was entered and suffices to keep the matter in question in the breast of the court until finally determined within the principle established in Henrichsen v Smith, 29 Or. 475, 42 P. 486, 44 P. 496. This is true in this instance, although by the act of February 25, 1913 which took effect June 3, 1913, the time for holding court in Jackson county was changed to the fourth Monday in February, May, and October. No term established by law had intervened in this instance to terminate the March term begun and held under the former statute; hence, for the purpose of this case, the original March term, at which the motion to vacate the nonsuit was filed, continued open until after the decision of the motion.

It is thoroughly established in this state that, during the term at which they were entered, every court of record has the inherent right to correct, modify, or vacate its orders and judgments, or while the proceedings remain under consideration and not finally disposed of. On the other hand after the lapse of the term, without the matter in question having been retained in the bosom of the court by an appropriate motion or other proceeding for determination, a judgment once rendered cannot be assailed in the same action except in the manner laid down in section 103, L. O. L., where it appears to have been made through mistake, inadvertence, surprise, or excusable neglect. In Deering v. Quivey, 26 Or. 556, 38 P. 710, it was decided that the court had no jurisdiction to set aside a judgment after the lapse of the term where control of it had not been retained by appropriate proceedings, and that an order...