In re Big Bend Drainage District Chicago & Northwestern Railway Co. v. Big Bend Drainage District

• Decision Date: 29 August 1922
• Docket Number: 1080
• Parties: IN RE BIG BEND DRAINAGE DISTRICT CHICAGO & NORTHWESTERN RAILWAY CO. v. BIG BEND DRAINAGE DISTRICT
• Court: Wyoming Supreme Court

208 P. 872

29 Wyo. 50

IN RE BIG BEND DRAINAGE DISTRICT CHICAGO & NORTHWESTERN RAILWAY CO. v. BIG BEND DRAINAGE DISTRICT

No. 1080

Supreme Court of Wyoming

August 29, 1922

APPEAL from the District Court of Fremont County; HON. CYRUS O BROWN, Judge.

Proceeding for the organization of the Big Bend Drainage District. From an order overruling objections of the Chicago & Northwestern Railway Company to the confirmation of the final report of the commissioners, the railway company appeals. Heard on motion to dismiss the appeal.

Appeal dismissed.

O. N Gibson, for respondent in support of the motion.

This is the second appearance of this case in this court. The former appeal was dismissed for failure of serving notice within time, the appellant then moving the trial court for a vacation of judgment on the ground that its counsel were misled into the belief that the record should show the entry of judgment as well as the date of rendition. The trial court ordered that the judgment be vacated and re-rendered as of the 12th of November, 1921. Notice of appeal was served within ten days of its entry. Respondent now moves that the appeal be dismissed on the following grounds: First, that the trial court was without power to restore a lost right of appeal by vacating its judgment and re-entering it as of a later date; second, that even if the court had such power in the absence of statute, the statute governing this proceeding precludes its exercise herein; third, if such power existed the record negatives any warrant for its exercise. This is not a case where the original judgment was subsequently altered or amended, or within the rule announced in School District v. Western Tube Co., 13 Wyo. 304. Hence the period of limitation runs from the date of the original entry, which is the general rule. (3 C. J. 1050; Snyder v. James, 2 Wyo. 252.)

The statute having fixed the time within which proceedings must be commenced, it is not within the power of the court to shorten nor lengthen the time thus fixed. (Hahn v Bank, 25 Wyo. 467; Boner v. Bank, 25 Wyo. 260; Bank of Monroe v. Wider, 11 Paige, 529; Humphrey v. Chamberlin, 11 N.Y. 275; Wait v. Van Allen, 22 N.Y. 322; Memphis R. R. Co. v. Johnson, 16 Lea (Tenn.) 387; Mount v. Van Ness, 34 N.J. Eq. 523; Weed v. Lyons, Walk (Mich.) 77; Whitney v Townsend, 7 Hun. (N. Y.) 233, 67 N.Y. 40; Cotes v. Smith, 29 How. Pr. (N. Y.) 326, 31 How. Pr. 146; Townsend v. Townsend, 2 Paige (N. Y.) 281; Agassiz v. Kelleher, 11 Wash. 88, 39 P. 228.)

The statute regulating drainage proceedings precludes the exercising of such power and the general rules of civil code or common law will not control (Sec. 6395 C. S. 1920). Appeals from orders made in such proceedings must be taken within thirty days (1030, 1052, 1084, 1094 C. S. 1920). Neither the trial nor appellate court has power to enlarge the statutory period for appeals. (Fremont Lodge v. Thompson, 24 Wyo. 14; Holt v. City of Cheyenne, 22 Wyo. 212-228; Boner v. Bank, 25 Wyo. 260-263; Esselyn v. Owl Creek Coal Co., 25 Wyo. 406; Bank v. Goodrich, 26 Wyo. 492.) The power of courts of general jurisdiction to open and vacate their judgment during the term at which rendered, is subject to statutory control. (Ellis v. Ellis, 92 Tenn. 471, 22 S.W. 1; State v. Adams, 84 Mo. 310; Long v. Kingfisher Co., 5 Okl. 128; Townley v. Adams, 118 Cal. 382; 23 Cyc. 907.)

When a motion to open or vacate a judgment is addressed to the equitable powers of the court it should be granted on a showing of statutory grounds. (23 Cyc. 894, 912.) It is an abuse of discretion to open or vacate a judgment where the moving party shows no legal ground therefor. (23 Cyc. 895.) It is believed to be within the bounds of propriety to discuss this question on motion to dismiss. This court under similar circumstances recently denied relief. (Boner v. Bank, supra.)

The appellate court is without jurisdiction. The trial court had no power to restore lost right of appeal by the mere device of vacating and re-entering the judgment.

P. B. Coolidge and Wymer Dressler, for appellant in resistance of motion.

A judgment remains subject to the control of the court during the whole of the term at which rendered. (23 Cyc. 901, 908.) An application to vacate a judgment during the term is addressed to the equity of the court; the vacation order was made upon the possibility of a misunderstanding of counsel as to the date of the entry of the order; the trial court was desirous of according to appellant its right to a review of the case on the merits. The question of abuse of discretion involves a consideration of the case on the merits. The drainage district is estopped to deny the jurisdiction of this court, it having itself appealed from the judgment of the District Court. The plenary power of the trial court over its own judgment at the term at which rendered is so well established, and its discretion in dealing with its own orders at the same term, are so broad that we do not consider it necessary to discuss the subject further. In the absence of clear abuse of discretion, the appellate court would not be disposed to disturb the action of the trial court. In the case no abuse of discretion is shown, but on the contrary, the record shows that the trial court did properly exercise its equitable power to vacate the judgment and re-enter the same. In any event an abuse of discretion would not be a basis for disputing the jurisdiction of the appellate court to hear the controversy although under proper facts the appellate court might reverse the action of the trial court on the ground that it was the result of an abuse of power.

KIMBALL, Justice. BLUME, J., and BURGESS, District Judge, the latter sitting instead of Potter, Ch. J., who is ill, concur.

OPINION

KIMBALL, Justice.

In a proceeding for the organization of the Big Bend Drainage District the Chicago & Northwestern Railway Company filed objections to the confirmation of the final report of the commissioners. The hearing upon the issues thus raised was concluded in the trial court July 28, 1921, when the judge announced in open court that he would overrule the objections and confirm the report, but the order to that effect, though dated July 28, was not signed by the judge until August 20 and not filed and entered until August 22. The railway company, appealing from that order, brought the case here under the so-called direct appeal statute. The record on appeal disclosing that the notice of appeal was served and filed July 28, and that the order appealed from was entered August 22, the motion of the respondent to dismiss the appeal on the ground that the notice was premature was sustained without opinion on October 25. On November 12, after the return of the record to the district court, on motion of the railway company, the order entered August 22 was vacated and "re-rendered" as of November 12. All the foregoing proceedings in the District Court were had during the May, 1921, term. Thereafter, on November 17, an order...