Gramm v. Fisher

• Citation: 31 P. 767,4 Wyo. 1
• Parties: GRAMM v. FISHER
• Decision Date: 15 December 1892
• Court: United States State Supreme Court of Wyoming

31 P. 767

4 Wyo. 1

GRAMM v. FISHER

Supreme Court of Wyoming

December 15, 1892

Former Opinion, 3 Wyo. 595.

ON APPLICATION FOR REINSTATEMENT OF PROCEEDINGS IN ERROR.

The petition and proceedings in error had been dismissed at the October, 1891, term on the ground that there was no judgment or final order of the district court which could be reviewed the transcript of the record in that respect showing only certain findings of fact and of law. After the adjournment of that term and the April, 1892, term, plaintiff in error, on the 10th day of September, 1892, filed a motion to reinstate alleging that before the original transcript had been certified to, counsel and the deputy clerk of the district court had made diligent search for such a judgment and had found none, and the discovery thereof was not made until long after the order of dismissal. The judgment order was short and was a part of the same journal entry showing the findings. On behalf of defendant in error opposing affidavits were filed showing that the judgment plainly appeared in the journal together with the findings.

Motion denied.

Nellis Corthell, for plaintiff in error.

Lacey &amp Van Devanter, for defendant in error.

CONAWAY JUSTICE. MERRELL, J., and SCOTT, DIST. J., concur.

OPINION

CONAWAY, JUSTICE.

The petition in error in this cause was dismissed at a preceding term of this court because there was no judgment or final order of the district court sought to be reviewed. The errors alleged were in findings of fact and of law by that court. No judgment or final order was shown. It is now claimed that there was a judgment regularly rendered upon those findings and regularly entered upon the journal of the district court; although the transcript of the record did not show it. A new transcript is furnished showing a judgment regular in form, occupying about three lines of typewritten matter in the new transcript, which does not appear in the former transcript. The affidavits of the attorney for plaintiff in error and of a former deputy clerk of the district court, who certified to the first transcript, are also furnished, to the effect that they together searched the records of the district court for this judgment and failed to find it.

On this showing the motion is now made to vacate the order of dismissal and to reinstate the cause on the docket of this court.

The rule is general that courts have control over their judgments and final orders, and may modify or vacate them summarily on motion at the term at which they are rendered. But it is part of the rule that courts lose that control from the close of the term. This applies to courts of last resort; 1 Black on Judgments, Sec. 306. There have always been some exceptions to the latter part of the rule. There have always been methods for a review by a nisi prius court of its own judgments and final orders after the lapse of the term in certain cases. But a summary proceeding on motion made at a succeeding term never was and is not now one of these methods. The authorities to this effect are numerous and respectable. None have been cited and we have found none to the contrary. Tribble v. Poore, 28 S.C. 565, 6 S.E. 577, and State v. Gaslin, 25 Neb. 71, 40 N.W. 601, are cited by plaintiff in error. In neither of these cases does it appear that the motion to reinstate was made at a succeeding term. The language of these cases, while not definite on this point, would indicate the contrary.

The Supreme Court of the United States, in over-ruling a motion for re-hearing presented at a succeeding term, says: "At the end of the term the parties are discharged from further attendance on all causes decided, and we have no power to bring them back. After that we can do no more than correct any clerical errors that may be found in the record of what we have...