Henrichsen v. Smith

• Decision Date: 06 April 1896
• Parties: HENRICHSEN v. SMITH et al.
• Court: Oregon Supreme Court

44 P. 496

29 Or. 475

HENRICHSEN v. SMITH et al.

Supreme Court of Oregon

April 6, 1896

Appeal from circuit court, Multnomah county; H.E. McGinn, Judge.

Action by L.C. Henrichsen against W.K. Smith and another. From an order setting aside a judgment for plaintiff, and granting a new trial, he appeals. Appeal dismissed.

R.R. Giltner, for appellant.

T.H Bartlett, for respondents.

PER CURIAM.

This is a motion to dismiss an appeal. The record discloses that on March 4, 1895, the defendants attempted to appeal from a judgment rendered against them in favor of plaintiff, by serving and filing a notice and undertaking therefor; that on May 4th, an order having been first made extending the time for submitting a bill of exceptions, the term of court at which the said judgment was rendered was adjourned sine die; that on May 22d, and two days after the expiration of the time limited therefor, the defendants presented to the late Judge Hurley, who tried the action their bill of exceptions, whereupon the court made an order permitting the plaintiff to suggest corrections, or make objections thereto; that on July 20th, and after the usual order had been made continuing to the next term all actions suits, and proceedings then pending in said court, the May term thereof expired by adjournment; that on September 10th Judge Hurley died, without having signed the bill of exceptions, and was succeeded in the office by Judge McGinn who, having no knowledge of the history of the trial, except such as was obtainable from an inspection of the official reporter's certified report thereof, declined to sign the bill of exceptions, and, upon motion of the defendants, set aside the judgment and granted a new trial from which last order the plaintiff appeals.

The defendants' counsel, in support of the order, contends that it is not a final judgment, and therefore not appealable; while the plaintiff's counsel insists that, the term of court at which the judgment was rendered having expired, the order permitting the defendants to thereafter submit a bill of exceptions was not such a proceeding as would authorize the court at a subsequent term to vacate the judgment, but, having done so, its order is a void judgment, to correct which an appeal will lie.

The question presented for consideration involves the power of the court to make the order complained of, for it must be concluded that if the court, at the time it was made, had the authority to vacate the judgment and grant a new trial, its order to that effect did not terminate the action, and is not appealable ( Kearney v. Snodgrass, 12 Or. 311, 7 P 309; McBride v. Railroad Co., 19 Or. 64, 23 P. 814; Beekman v. Hamlin, 23 Or. 313, 31 P. 707), but, if the court had lost jurisdiction of the judgment, it was without power to set it aside, and its order in that respect is a void judgment, and therefore reviewable on appeal ( Trullenger v. Todd, 5 Or. 36; Hume v. Bowie, 148 U.S. 245, 13 Sup.Ct. 582; Deering v. Creighton [Or.] 38 P. 710). In Bronson v. Schulten, 104 U.S. 410, Mr. Justice Miller, in discussing the power of a court at a subsequent term to vacate its judgments, says "that after the term has ended all final judgments and decrees 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." The doctrine announced in that case was approved in Deering v. Creighton, supra, and has become the rule of practice in this state; and the only inquiry remaining is whether the court, by the order permitting the defendants, at a subsequent term of the court, to present their bill of exceptions, retained jurisdiction over the judgment. The service of the notice of appeal, and filing the same, with an undertaking therefor, manifest an intention to take an appeal, and the order extending the time beyond the term must be considered as a step taken to modify or correct the judgment, and, having been made before the adjournment of the term, kept the cause in the "breast of the court," and jurisdiction of the judgment was thereby retained. Nor could the failure of the defendants to submit their bill of exceptions within the time limited defeat the right to vacate the judgment, or exhaust the power of the judge thereafter to sign ...