First National Bank of Sundance v. Moorcroft Ranch Company

• Decision Date: 06 June 1894
• Citation: 36 P. 821,5 Wyo. 50
• Parties: THE FIRST NATIONAL BANK OF SUNDANCE v. MOORCROFT RANCH COMPANY. SAME v. SAME AND MILLAR. SAME v. SAME AND THOMAS
• Court: Wyoming Supreme Court

36 P. 821

5 Wyo. 50

THE FIRST NATIONAL BANK OF SUNDANCE v. MOORCROFT RANCH COMPANY.

SAME v. SAME AND MILLAR.

SAME v. SAME AND THOMAS

Supreme Court of Wyoming

June 6, 1894

Commenced in District Court December 26, 1891.

ERROR to District Court for Crook County, HON. RICHARD H. SCOTT Judge.

The First National Bank of Sundance brought three cases against the Moorcroft Ranch Company, and the same company and James Millar, and the same company and George B. Thomas respectively, to recover money due upon promissory notes, and secured an attachment upon certain real property. The attachments were afterwards, upon motion and hearing dissolved by the judge of the district court in vacation. A motion was subsequently made, supported by affidavit, to vacate the order of dissolution. It was alleged in the affidavit that the acts of the attachment defendant complained of therein were unknown to the plaintiff until after the attachment was dissolved. Said motion and affidavit were stricken from the files. The other material facts are stated in the opinion.

Order affirmed.

B. F. Fowler, N. K. Griggs, and Potter & Burke, for plaintiff in error.

A rehearing is always granted if, in the circumstances of the opposition, there is anything to excite suspicion of unfairness, or a belief that the moving party was taken by surprise. Mitchell v. Allen, 12 Wend., 290; Dollfus v. Frosch, 5 Hill, 493 n; Hall v. Emmons, 8 Ab. Pr. N. S., p. 451-4; Butts v. Burnett, 6 id., 312; Snyder v. White, 6 How. Pr., 521; Bank v. Am., etc., 4 Sandf., ch. 438; Robinson v. Saterlee, 3 Saw., 134; Belmont v. R. R. Co., 52 Barb., 637; Hall v. Emmons, 8 Ab. Pr. N. S., 451-4; Smith v. Spalding, 3 Rob., 615; Snyder v. White, 6 How. Pr., 321; Standard v. Williams, 10 Wend., 599; Herzig v. Metzger, 62 How. Pr., 355; Arnold v. Oliver, 64 How. Pr., 452; People v. Bergen, 53 N.Y. p. 410; Davies v. Cottle, 3 Term R., 405; 2 Arch Pr., 2d Ed., 305.

Such re-hearing may be allowed upon the papers originally used, or upon new ones. White v. Munroe, 33 Barb., 650; People v. Mercein, 3 Hill, 399; Arnold v. Oliver, 64 How. Pr., 452; Willet v. Fayerweather, 1 Barb., 72; White v. Munroe, 33 Barb., 650; People v. Mercein, 3 Hill, 399; Townsend v. Wisner, 62 Ia. 672; West Side Bank v. Pugsley, 12 Ab. Pr. N. S., 28; 1 Burr Pr., 348-350; 2 Paine & Duer, 59; Case v. Turner, 2 Wend., 627; Barney v. Keith, 6 id., 555; Hart v. Butterfield, 3 Hill, 455; Case v. Shepherd, 1 John., C. 245; Lindsay v. Sherman, 5 How. Pr., 308; Blake v. Locy, 6 id., 108; Bank v. Spencer, 15 id., 15; Knickerbocker Co. v. Ecclesine, 11 Ab. Pr. N. S., 385; Riggs v. Pursell, 74 N.Y. p. 379; Eaton v. Pickersgill, 75 id., 599; 2 Arch. Pr. K. B., 1 Am. Ed., 278; 1 Tidd Pr., 3 Am. Ed., 511; Cooper v. Jagger, 1 Chit., 445; Wood v. Kirk, id., 246; Pike v. Davis, 6 Mees. & W., 546; Clement v. Weaver, 6 Jurist, 62.

Lacey & Van Devanter, for Moorcroft Ranch Company.

After the term has ended all final judgments of the court pass beyond its control unless steps be taken during that term, by motion or otherwise, to set aside, modify or correct them. Bronson v. Schulten, 104 U.S. 410; Allen v. Wilson, 21 F. 881; Wood v. Payea, 138 Mass. 61; Shaw v. McGregor, 8 Cal. 521; Anderson v. Anderson, 18 B. Mon. 95; Cox v. Brackett, 41 Ills., 222; Salter v. Hilgen, 40 Wis. 363; Ragsdale v. Green, 36 Tex. 193; Cotten v. McGehee, 54 Miss. 621; Moore v. Hinnant, 90 N.C. 163; Loney v. Bailey, 43 Md. 10; Makepeace v. Lukens, 27 Ind. 435.

The rule as above stated expressly excepts from its operation orders interlocutory in their character and not final. Kelly v. Stanberry, 13 O., 408-421.

A judgment which is entirely void because of want of jurisdiction may be set aside at a subsequent term. Ladd v. Mason, 10 Ore., 308; In re. College Street, 11 R.I. 472.

Under our code an order dissolving an attachment is a final order. Watson v. Sullivan, 5 O. St., 43; Harrison v. King, 9 O. St., 388; Gans v. Thompson et al., 11 O. St., 579; Sutherlin v. The Underwriters' Agency, 53 Ga. 442; Bruce v. Conyers, 54 Ga. 680; Schlemmer v. Myerstein, 19 How. Pr., 412; Ranscher v. McElhinney, 11 Mo. App., 434.

On a motion to dissolve attachment there is an issue of fact regularly joined upon the affidavit for attachment and the traverse, and which is triable as other issues of fact are triable. 1 Wade on Attachment, Sec. 276-280; Armstrong v. Blodgett, 33 Wis. 284; Hawkins v. Allbright, 70 Ills., 87; Rev. Stat., Secs. 2517, 2518.

No notice will be taken of errors except such as are harmful. The matters set forth in the affidavit were not sufficient to require any action by the court. (Weaver v. France, 3 Wyo. 273; Link v. Ry. Co., 3 Wyo. 679.)

GROESBECK, CHIEF JUSTICE. CONAWAY and CLARK, JJ., concur.

OPINION

GROESBECK, CHIEF JUSTICE.

It appears from the record that in the three cases above entitled, the First National Bank of Sundance had secured orders of attachment against the defendants, and that the property of the Moorcroft Ranch Company was seized thereunder. Motions were made to dissolve and discharge these attachments as to all of the property attached, which were heard by the judge of the district court in vacation, under the power expressly conferred by the statute. Sec. 2910, Rev. Stat. On this hearing, the attachments were dissolved by the judge in vacation. Thereafter, the plaintiff in error, who was the plaintiff below, moved the court at a succeeding term, upon reasonable notice to the defendants in error given during vacation, to open, set aside and vacate the order of the judge in vacation dissolving the attachments for the reasons stated in each of the motions "that said order of dissolution of said attachment was procured through the fraudulent representations of defendant, Moorcroft Ranch Company, and by misrepresentations by said defendant of the facts touching said attachment and without the court or plaintiff's being correctly advised in regard to said attachment, and through the defendant's purposely misleading the court and plaintiff as to the facts relating to said attachment." An affidavit was filed in support of this motion and made a part thereof, which we shall consider hereafter. The Moorcroft Ranch Company appeared specially and moved the court to strike from its files the said motions of plaintiff in error, mainly upon the ground that the proceeding to vacate the order of the judge in vacation and for a re-hearing on the ground of fraud alleged in the motion should have been by petition, duly verified, setting forth the order sought to be vacated and the grounds therefor, and by summons issued thereon to be served as in the commencement of an action.

This motion to strike from the files the said motion of plaintiff in error was sustained by the court, the preamble to the order stating that the court "had fully considered said motion of plaintiffs and also said motion of defendants to dismiss the same and strike from the files."

No proceeding in error has been instituted to review the order of the judge in vacation dissolving the attachments, and no stay of the order appears to have been allowed. The question presented here, then, is the alleged error of the district court in sustaining the motion to strike from the files the motion of plaintiff in error to vacate the order dissolving the attachments and for a re-hearing and the consequent dismissal of such motion.

The code provides for the modification or vacation of a judgment or order of the district court by that court after the term at which the same was made, and the method of procedure is pointed out. On the ground of fraud practiced by the successful party in obtaining a judgment or order there must be a petition verified by affidavit setting forth the judgment or order, the grounds for vacating or modifying it and on such a petition, summons must issue as in the commencement of an action. Rev. Stat., Sec. 2701, 2705. This method was not pursued in this proceeding, but the relief is sought by motion supported by affidavit, filed in vacation, notice of which was served in vacation, the hearing of which was fixed in the notice of the motion on the first day of the next succeeding term of the district court. This is claimed to be sufficient by counsel for plaintiff in error, as the order sought to be vacated is not an order of the district court, but that of its judge at chambers, and hence does not fall within the proceedings regulated by the code, which it is asserted, apply only to the vacation of an order of the district court, and not to the order of its judge. As has been stated herein, the judge of the district court in vacation may hear and decide a motion to discharge an attachment, as well as the court itself, as this authority is expressly conferred by the code. The order dissolving or sustaining an attachment, when made by a court, is undoubtedly a final order and may be reviewed on proceedings in error instituted before judgment. This was the ruling in Ohio, under code provisions similar to ours. Watson v. Sullivan, 5 Ohio St. 42; Harrison v. King, 9 Ohio St. 388; Gans v. Thompson et al., 11 Ohio St. 579; Code Civ. Proc., Wyo. Rev. Stat., Sec. 3126, 3128. This rule is not a universal one but is supported by sound decisions under code provisions similar to ours. Sutherlin v. Underwriters' Agency, 53 Ga. 442; Bruce v. Conyers, 54 Ga. 678; Schlemmer v. Myerstein, 19 How. Pr. 412; Ranscher v. McElhinney, 11 Mo.App. 434. Under our code, it may be that proceedings in error would not lie from the order of the judge in vacation upon attachment proceedings, as it is a judgment rendered or final order made by the district court, which may be reversed, vacated or modified by the supreme court, for errors appearing on the record (Rev. Stat., Sec....