Ogle v. Potter

• Court: Montana Supreme Court
• Writing for the Court: BRANTLY, C.J.
• Citation: Ogle v. Potter, 24 Mont. 501, 62 P. 920 (Mont. 1900)
• Decision Date: 03 December 1900
• Parties: OGLE et al. v. POTTER.

62 P. 920

24 Mont. 501

OGLE et al. v. POTTER.

Supreme Court of Montana

December 3, 1900

Appeal from district court, Gallatin county; F. K. Armstrong, Judge.

Action by J. F. Ogle and another against William Potter. There was a judgment for plaintiffs, and from an order granting a new trial plaintiffs appeal. Reversed.

This action was brought to obtain a dissolution of a co-partnership between plaintiffs and defendant, and an adjournment of the co-partnership accounts. After the answer was filed, and on November 14, 1896, the parties stipulated in open court that the cause might be referred to one W. J Stevenson, to try all the issues involved, and to report findings of fact and law. Under this stipulation an order of reference was made and entered. The referee heard the evidence offered by the parties, and on December 7th reported to the court his findings and conclusions. There upon counsel for plaintiffs asked the court to enter judgment in accordance with the report. After argument by counsel this was done, on December 12th. At the same time an order was made directing the referee to file with the clerk, within 10 days, a transcript of the evidence heard at the trial. This order was not obeyed, the referee, a short time thereafter absconding from the state. Within 10 days after the decision of the referee defendant's counsel served and filed with the clerk a notice of intention to move for a new trial, and within 30 days thereafter, under an extension of time allowed for that purpose, prepared his statement in support of the motion, and served the same upon counsel for plaintiffs. In due time counsel for plaintiffs submitted amendments, which counsel for defendant refused to adopt. The statement and the proposed amendments were never submitted to the referee, nor was any other step taken in the case until April 6, 1897 when counsel for defendant, upon notice, filed a motion asking the court to set aside the findings of the referee and to grant a new trial of the cause. Neither the motion nor the notice thereof stated any ground upon which the new trial would be asked, but reference was made in the motion to an affidavit filed with the clerk as stating the grounds which would be urged. This affidavit, after reciting the history of the case from its inception, set forth that the judgment had been entered upon the findings of the referee upon the condition that he would file with the clerk within 10 days a transcript of the evidence heard by him; that the order of the court in this behalf had not been obeyed; that the referee had absconded from the state, and his residence was unknown; that it was impossible for counsel to incorporate in his statement on motion for a new trial the evidence upon which the findings were based, but that he was compelled to state it upon his best recollection; that, notwithstanding this had been done, amendments had been proposed; that he was therefore unable to obtain a settlement of the statement so that he could submit to the court the insufficiency of the evidence to support the findings; that plaintiffs had no cause of action against the defendant; and that, unless a new trial was granted, defendant would suffer a gross injustice. On November 3, 1897, this motion was submitted to the court with plaintiffs' objections to its consideration. On February 9, 1898, the court overruled plaintiffs' objections, and entered an order granting defendant a new trial. From this order plaintiffs have appealed.

W. L. Holloway, for appellants.

J. L. Staats, for respondent.

BRANTLY C.J.

(after stating the facts). It was held by this court in Whitbeck v. Railway Co., 21 Mont. 102, 52 P. 1098, that an appealable order, regularly made, cannot be reviewed or set aside by the court making it, except in the cases provided by statute. In that case judgment had been rendered upon the pleadings in defendants' favor. Subsequently, and before entry of the judgment, the court, concluding that it was erroneous, set it aside upon its own motion. This action was held to be in excess of jurisdiction, in view of the provisions of the Code of Civil Procedure prescribing a mode for securing a new trial and for a review of the judgment on appeal. The remarks made in the opinion touching the power of the district court over its own judgments are pertinent to this case. The general result reached is that unless the judgment or order in question comes within the rule that the court may within a reasonable time correct mistakes in its proceedings, and annul orders and judgments inadvertently made, it should not be disturbed, except by formal methods prescribed by statute. The order complained of here, not falling within this rule or any other recognized exception must be justified, if at all, upon one of two grounds, viz.: That the proceeding upon which it is based comes within the provisions of the Code of Civil Procedure authorizing...