Long v. Bd. of Cnty. Comm'rs of Kingfisher Cnty.

• Decision Date: 12 February 1897
• Citation: 1897 OK 25,47 P. 1063,5 Okla. 128
• Parties: WILLIAM C. LONG v. BOARD OF COUNTY COMMISSIONERS OF KINGFISHER COUNTY.
• Court: Oklahoma Supreme Court

1897 OK 25

47 P. 1063

5 Okla. 128

WILLIAM C. LONG v. BOARD OF COUNTY COMMISSIONERS OF KINGFISHER COUNTY.

Supreme Court of Oklahoma

Decided: February 12, 1897

Error from the District Court of Kingfisher County.

Syllabus

¶0 NEW TRIAL ON MOTION OF COURT. On December 5, 1895, a judgment was rendered in favor of the plaintiff and against the defendant. On December 6, 1895, the court set aside said judgment and continued the cause for trial at the next term. No motion was ever made for a new trial by either party, but the judgment was vacated and a new trial ordered by the court, upon its own motion, and Without any cause assigned. Held: That a trial court has no authority to vacate a judgment or grant a new trial upon its own motion; that a new trial can only be granted upon the initiative of one of the parties to the cause and upon motion therefor filed within three days from the rendition of the judgment, unless longer time be given for filing such motion, upon good cause shown; that the order of the court, vacating the judgment and granting a new trial upon its own motion, was without authority of law and is reversible error.

Cunningham, Cutlip & Sanders, for plaintiff in error.

J. B. Moffett, for defendant in error.

TARSNEY, J.:

¶1 This action was commenced by the plaintiff in error, William C. Long, in the district court of Kingfisher county, to recover from the defendants in error, J. D. Mott et al, as the board of county commissioners of said county, compensation and salary due the plaintiff in error as county clerk of said county, and on the fifth day of December, 1895, a judgment was rendered by said court, upon an agreed statement of facts, in favor of the plaintiff and against the defendants for the sum of $ 2,150.65, and costs of the action. Afterwards, on December 6, 1895, at the same term, the court, upon its own motion, set aside said judgment and ordered said cause continued for the term, to which order of the court setting aside said judgment, the plaintiff, at the time, duly excepted and has appealed to this court, from said order. No motion was filed in said cause, by either party thereto, or any application made to the court for the setting aside of said judgment, or the granting of a new trial, in said cause, and nothing appears in the record to show the grounds of said order or for what reason said judgment was set aside and a new trial ordered.

¶2 The only record of the proceedings, appears in the minutes and journal entry of said court which is as follows:

"And now on this fifth day of December, 1895, the same being one of the regular judicial days of the regular September, 1895, term of said court, the court upon consideration rendered judgment in favor of plaintiff and against the defendants, as board of county commissioners of said county aforesaid, in the sum of $ 2,150.65, and interest thereon, and cost of suit taxed at $ ; and that afterwards, to-wit: Sixth day of December, 1895, and at the same term of said district court, the court, upon its own motion, set aside and held for naught the judgment rendered in said cause for said plaintiff and ordered said cause continued for the term, to which the plaintiff duly excepted at the time and still excepts.

(Signed)

JOHN L. MCATEE, Judge."

¶3 This record presents the single question whether the trial court can vacate a judgment and grant a new trial upon its own motion. The code of civil procedure of this territory, nowhere, in express terms, authorizes a court to set aside a judgment upon its own motion. By § 586, of the code, the district court is given power to vacate or modify its own judgments or orders at or after the term, at which such judgment or order is made, within the time and in the manner and for the causes specified in the nine subdivisions of said section. The first subdivision limits such powers to the time, manner and cause prescribed in § 322 of the code; but this last section relates to the granting of new trials where the grounds therefor could not, with reasonable diligence, have been discovered before, but are discovered after the term at which the verdict, reference or decision was rendered or made; and the new trial, in that case, must be upon petition, upon which a summons shall issue. The second subdivision relates to new trials granted in proceedings against defendants constructively summoned. The third, to new trials on account of mistake, neglect or omission of the clerk or irregularity in obtaining a judgment or order, and § 587 of the code provides that proceedings to correct mistakes or omissions of the clerk or irregularity in obtaining a judgment or order shall be by motion, upon reasonable notice to the adverse party, or his attorney in the action. Section 588 of the code prorides that proceedings to vacate or modify the judgment or order on the grounds mentioned, in each of the other ...