Rosumny v. Marks

• Decision Date: 01 June 1926
• Citation: 118 Or. 248,246 P. 723
• Parties: ROSUMNY v. MARKS.
• Court: Oregon Supreme Court

246 P. 723

118 Or. 248

ROSUMNY v. MARKS.

Supreme Court of Oregon

June 1, 1926

Department No. 1.

Appeal from Circuit Court, Multnomah County; G. F. Skipworth, Judge.

Action by Minnie J. Rosumny against Martin Marks. From judgment granting motion to set aside judgment for plaintiff and award new trial, plaintiff appeals. Affirmed.

This is an action of damages for a personal injury sustained by reason of a collision of an automobile operated by plaintiff and one operated by defendant at the intersection of Twenty-Fifth and Lovejoy streets, in the city of Portland Multnomah county, Or., on November 29, 1922. The cause was tried before the court and a jury, and on Septmeber 19, 1923 resulted in a verdict and judgment for plaintiff. Upon September 22, 1923, defendant filed a motion to set aside the judgment and award a new trial. On November 14, 1923, the court granted this motion. Plaintiff appeals.

S. J. Bischoff and S. J. Silverman, both of Portland, for appellant.

Clarence J. Young, of Portland (Dey, Hampson & Nelson, of Portland, on the brief), for respondent.

BEAN J.

The plaintiff contends that at the time the motion for a new trial was granted the circuit court had lost jurisdiction of the cause for the reason that the motion was not determined during the September term of court, at which the judgment was entered, nor during the succeeding October term of court, and there was no order made or entered extending the time in which to hear and determine the motion for a new trial during the September term or October term of the circuit court.

It appears from the bill of exceptions that the motion for a new trial was called to the attention of the court during the September term, 1923, by one of defendants' attorneys who requested a hearing on the motion. Attorney S. J. Silverman representing the plaintiff, was then about to leave for San Francisco and requested that the hearing be continued until his return.

On October 5, 1923, defendant served a notice upon plaintiff that Hon. G. F. Skipworth, presiding judge at the trial herein, had fixed Saturday morning October 6, 1923, at 9:30 o'clock at the county court as the time and place for argument on the motion for a new trial. Attorney Silverman was then still in California, but at the time mentioned in the notice was temporarily represented by other counsel. The court directed that the motion be submitted upon written briefs, plaintiff's briefs to be submitted on or before October 21, 1923, and defendant's reply brief to be submitted within 10 days after the filing of plaintiff's brief. The briefs were filed by October 24, 1923. No proceedings were thereafter had in the cause during October for the reason, as appears from the bill of expections, that the court had said motion under advisement. During the November term, 1923, the court made and entered an order granting the motion to set aside the judgment and for a new trial.

On November 28, 1923, plaintiff served and filed a motion to vacate the order of November 14, 1923, granting a new trial, on the ground that the court was without jurisdiction to make the order after the expiration of the September term. Thereafter the court on December 7, 1923, denied plaintiff's motion to vacate the order of November 14, 1923.

Section 175, Or. L., provides as follows:

"A motion to set aside a judgment and for a new trial * * * shall be filed within one day after the entry of the judgment sought to be set aside, or such further time as the court may allow. * * * The motion shall be heard and determined during the term, unless the court continue the same for advisement, or want of time to hear it, but said motion shall be heard and determined by the court within sixty days from the time of the entry of judgment, and not thereafter, and if not so heard and determined within said time, the said motion shall be conclusively taken and deemed as denied."

On September 29, 1924, it being the last day of the September term of court, the court made a general order--

"* * * That all unfinished business, including all cases not tried and disposed of and also including the hearing of all motions for new trials and other matters pertaining thereto (that) have not been submitted or disposed of by the court at this term of court, be continued until the next regular term of court, because of the lack of time on the part of the court to hear and dispose of the same and that the court stand adjourned without date."

On November 3, 1923, being the last day of the October term of court, the court made a like order continuing all unfinished business, including cases not tried and disposed of, the hearing of all motions for a new trial, and other matters pertaining thereto that had not been disposed of.

A request on the plaintiff's behalf that the hearing of the motion for a new trial be postponed until Mr. Silverman, attorney for plaintiff, returned to Portland, coupled with the fact that plaintiff subsequently contested the motion for a new trial on its merits, without raising the question of procedure, would tend to preclude the plaintiff from objecting that no order of continuance was entered in the case. The court delayed the hearing for the convenience of plaintiff and she should not thereafter be permitted to complain.

The bill of exceptions discloses that the motion for a new trial was not heard during the September term of court for the reason that the plaintiff requested a postponement thereof. The motion was therefore, on September 29, 1923 continued for the term. The motion was directed by the court to be heard upon written briefs, as at the time it was set for hearing, on October 6, 1923, the plaintiff's attorney was absent and Hon. G. F. Skipworth, the judge before whom said cause was tried, was about to return to his own district. The motion was not passed upon during the October term after the briefs were filed, for the reason the court had the same under advisement. The matter was continued for the October term by order of the court, entered on November 3, 1923.

Counsel, in support of plaintiff's position that the court lost jurisdiction of the cause, cite the cases of Deering v. Quivey, 26 Or. 556, 38 P. 710; richsen v. Smith,

29 Or. 475, 479, 42 P. 486, 44 P. 496; Alexander v. Ling, 31 Or. 223, 50 P. 915; Purdy v. Van Keuren, 62 Or. 34, 123 P. 1070; McMahon v. Hull, 63 Or. 135, 143, 119 P. 348, 124 P. 474, 126 P. 3; First Christian Church v. Robb, 69 Or. 283, 286, 138 P. 856; Tucker v. Davidson, 80 Or. 254, 255, 156 P. 1037.

The motion for a new trial was granted within the 60-day limit provided in section 175, Or. L.

All of the cases cited by plaintiff are where some order affecting a judgment or decree was made at a term of court subsequent to the one at which it was rendered without the matter having been retained in the bosom of the court by any appropriate proceeding, and are unlike the present case. In First Christian Church v. Robb, 69 Or. 285, at page 286, 138 P. 856, Mr. Justice Burnett states the law thus:

"It is thoroughly established in this state that, during the term at which they were entered, every court of record has the inherent right to correct, modify or vacate its orders and judgments, or while the proceedings remain under consideration and not finally disposed of. On the other hand, after the lapse of the term, without the matter in question having been retained in the bosom of the court by an appropriate motion or other proceeding for determination, a judgment once rendered cannot be assailed in the same action except in the manner laid down in Section 103, L. O. L. * * *"

Counsel for plaintiff contends that the cause was not continued for the term by the general orders of continuance referred to above. To this contention we are not able to accede. The court plainly ordered the cause continued for the respective terms, for good and sufficient reasons. As shown by the court journal and bill of exceptions, section 175, Or. L., only requires that the motion be heard during the term "unless the court continues the same for advisement or want of time to hear it." The motion for a new trial was continued for the September term for want of time to hear it when the counsel for plaintiff could be present. The motion was continued for the October term for the reason that the court had the same under advisement. It was continued from the September term to the October term and from the October term until the November term, by the general order of the court entered at the end of each of those terms in the journal and carried all unfinished business including, in particular, motions for a new trial over to the subsequent term.

It is believed that it is the invariable custom in all the circuit courts of this state, at the end of a term of circuit court, for the court to make a general order continuing all unfinished business for the term, such as the order of continuance above stated. The same practice prevails in this court. Such an established practice ought not to be disturbed except for cogent reasons.

A general order of continuance, like the ones in question in the case at bar, has been recognized or a want thereof noticed and commented upon by this court in the case of Henrichsen v. Smith, 29 Or. 475, at page 478, 42 P. 486, 44 P. 496, where it is recited:

"That on July 20th, and after the usual order had

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