Spivey v. District Court of Third Judicial District of State

Decision Date03 October 1923
PartiesJAMES SPIVEY, Plaintiff, v. DISTRICT COURT OF THE THIRD JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR ADA COUNTY, and M. I. CHURCH, Judge, Defendants
CourtIdaho Supreme Court

ORDER-MINUTE ENTRY-UNSIGNED MINUTES-CORRECTNESS OF ENTRY NOT DISPUTED-MOTION FOR NEW TRIAL-REHEARING AFTER ORDER GRANTING OR DENYING SAME - SECOND AND CONTRARY ORDER - JURISDICTION-PROHIBITION-REMEDY BY APPEAL.

1. Where a district judge ordered the clerk to make an entry denying a new trial, and the clerk made the entry as directed, the same constitutes an order, even though the minutes were not signed by the judge.

2. An order of a district court denying a new trial is final, and the judge has no jurisdiction to grant a rehearing and make another order granting the motion.

3. Held, that under the facts of this case the remedy by appeal is not speedy, or adequate, and prohibition lies.

APPLICATION for original Writ of Prohibition. Alternative writ granted. Made permanent on hearing.

Alternative writ of prohibition made permanent with costs to plaintiff.

Clinton H. Hartson, for Plaintiff.

The trial court, on March 24, 1923, "made and entered on the minutes of the court" an order denying motion for new trial, and thereafter had no jurisdiction to grant a new trial, as was done by it on June 1, 1923. (Clarke v Crane, 57 Cal. 629; Garoutte v. Haley, 104 Cal 497, 38 P. 194; Hislop v. Moldenhauer, 24 Ore. 106, 32 P. 1026; C. S., secs. 7152, 7194.)

It is apparent that there are now two different and equally effective methods of making and entering an order. ( Perkins v. Loux, 14 Idaho 607, 95 P. 694, 697.)

The statute does not prescribe the manner or method of making or entering an order granting or denying motion for a new trial.

Even though the court did not sign the order in the minutes, and the entry in the minutes was the mere ministerial act of the clerk, it was sufficient as an appealable order. ( Bouchard v. Abrahamsen, 4 Cal.App. 430, 88 P. 383; King v. Dugan, 150 Cal. 258, 88 P. 925; 20 R. C. L. 512; In re Weber, 4 N.D. 119, 59 N.W. 523, 28 L. R. A. 621; Von Schmidt v. Widber, 99 Cal. 511, 34 P. 109; Allen v. Voje, 114 Wis. 1, 89 N.W. 924; Pflug v. Brown, 57 Cal.App. 312, 207 P. 39.)

"The superior court may not revoke, modify, or otherwise disturb its judgments and orders regularly made in pursuance of plain statutory provision, where the statute prescribes the method by which such judgments and orders may be reviewed, except as authorized by statute." (Luke v. Coleman, 38 Utah 383, Ann. Cas. 1913B, 483, 113 P. 1023; United Railroads v. Superior Court, 170 Cal. 755, Ann. Cas. 1916E, 199, 151 P. 129; Dolan v. Superior Court, 47 Cal.App. 235, 190 P. 469; Waggenheim v. Hook, 35 Cal. 216.)

An order granting or denying new trial, once submitted and entered, cannot afterward be vacated and further order made in the premises, except in certain statutory contingencies. ( Coombs v. Hibberd, 43 Cal. 452; Odd Fellows' Sav. Bank v. Deuprey, 66 Cal. 168, 4 P. 1173; People v. Center, 61 Cal. 191; Dorland v. Cunningham, 66 Cal. 484, 6 P. 135; Carpenter v. Superior Court, 75 Cal. 596, 19 P. 174; Egan v. Egan, 90 Cal. 15, 27 P. 22; Holtum v. Grief, 144 Cal. 521, 78 P. 11; Audia v. Denver & R. G. R. Co., 45 Utah 459, 146 P. 559; Crosby v. North Bonanza Silver Min. Co., 23 Nev. 70, 42 P. 583; Rogers v. Hoenig, 46 Wis. 361, 1 N.W. 17; State v. Naylor, 5 Boyce (Del.), 99, 90 A. 880; Zeilman v. Fry, 213 Mich. 504, 182 N.W. 41; Atlantic Coast Line v. Neves, 23 Ga.App. 468, 98 S.E. 391; Victor Power & Min. Co. v. Cole, 11 Cal.App. 497, 105 P. 758; Whitbeck v. Montana Cent. Ry. Co., 21 Mont. 102, 52 P. 1098.)

The objection that the lower court has improperly vacated its final order is one that goes to the jurisdiction of the court. (Lang v. Superior Court, 71 Cal. 491, 12 P. 306; Carpenter v. Superior Court, supra; Holtum v. Greif, supra; Robson v. Superior Court, 171 Cal. 588, 154 P. 8; Nasan v. Superior Court, 39 Cal.App. 448, 179 P. 454; Gill v. Peppin, 41 Cal.App. 487, 182 P. 815; Dolan v. Superior Court, supra; Owen v. Dist. Court, 43 Okla. 442, 143 P. 17; Shepherd v. Superior Court, 54 Cal.App. 673, 202 P. 466; Newman v. District Court, 32 Idaho 607, 186 P. 922.)

Delana & Delana, for Defendants.

An order granting or refusing new trial may be vacated during the same term of court. (Ann. Cas. 1913B, 485 and 487, note; 29 Cyc. 1029; 20 R. C. L., p. 312, sec. 96; Dawson v. Wisner, 11 Iowa 6; State v. Luft, 104 Kan. 353, 179 P. 553; Kentucky Cent. R. Co. v. Smith, 93 Ky. 449, 20 S.W. 392, 18 L. R. A. 63; Loveland v. Rand, 200 Mass. 142, 85 N.E. 948; Beckett v. North Western Masons Aid Assn., 67 Minn. 298, 69 N.W. 923; Chandler v. Gloyd, 217 Mo. 394, 116 S.W. 1073; Snow v. Vandever, 33 Neb. 735, 51 N.W. 127; Herzig v. Metzger, 62 How. Pr. (N. Y.), 355; Coffield v. Warren, 72 N.C. 223; Huber Mfg. Co. v. Sweney, 57 Ohio St. 169, 48 N.E. 879; Blake v. Baker, 66 Okla. 88, 167 P. 329; Van Vliet v. Conrad, 95 Pa. S.Ct. 494; National G. N. R. Co. v. Hugen, 45 Tex. Civ. 326, 100 S.W. 1000; Rhea v. Gibson, 10 Gratt. (Va.) 215; Browning v. Hoffman, 86 W.Va. 468, 103 S.E. 484.)

Writ of prohibition will not lie to prevent vacation or annulment of judgment or order. (32 Cyc. 621; State v. District Court, 5 Wyo. 227, 39 P. 749; Selzer v. Bagley, 19 N.D. 697, 124 N.W. 426.)

The letter of Judge M. I. Church and the unsigned minute entry do not constitute an order. (C. S., sec. 7194; Goade v. Gossett, 35 Idaho 84, 204 P. 670; Exchange National Bank v. Northern Idaho Pine Lumber Co., 24 Idaho 671, 135 P. 747; Johnson v. Johnson, 2 Tenn. 521.)

MCCARTHY, J. Budge, C. J., and Dunn, William A. Lee and Wm. E. Lee, JJ., concur.

OPINION

MCCARTHY, J.

This is an original application for a writ of prohibition. The following facts are stipulated. March 24, 1923, the defendant judge addressed to counsel and delivered to the clerk for the purpose of making a minute entry a letter which closed as follows:

"I am in doubt as to the grounds set up in motion for new trial, as being sufficient to grant the same, and therefore will have to deny the motion upon those grounds."

The same day the clerk entered the following on the minutes:

"In this cause, the intervenors motion for a new trial having been heretofore argued before the court and taken under advisement, the court at this time rendered its decision and denied the motion for a new trial."

This minute entry was never signed by the judge. Subsequently a motion for rehearing was made and entertained by the court. June 1, 1923, defendant judge addressed to counsel and delivered to the clerk for the purpose of making a minute entry a letter which closed:

"Therefore, the motion for a new trial will be granted, and an order may be made in accordance with the above ruling."

On the same day the clerk entered the following minute:

"In this cause, the defendants' motion for a new trial having been heretofore argued before the Court and taken under advisement, the Court, at this time, rendered its decision, to wit: 'Motion for new trial will be granted.'"

This minute entry was never signed by the judge. On June 4, 1923, the defendant judge signed and filed with the clerk an order which closed as follows:

"It is ordered, that the verdict and judgment in the above entitled action be set aside and a new trial be had, in said cause."

The original judgment of the trial court was in favor of the plaintiff in this proceeding and he opposed the motion for a new trial. He seeks to restrain the defendants from proceeding with a new trial on the ground that the defendant judge denied the motion on March 24, 1923, and thereafter had no jurisdiction or power to reverse his action and grant a new trial. The case is submitted to us on the application, demurrer and stipulation.

C. S., sec. 7194, reads as follows:

"§ 7194. Every direction of a court or judge made or entered in writing and not included in a judgment is denominated an order. An application for an order is a motion."

An appeal must be taken from the order within sixty days after it is made and entered on the minutes of the court or filed with the clerk. (C. S., sec. 7152.) It is thus evident that an order must be in writing. It may, however, be made and filed with the clerk, in which event it must be signed by the judge, or it may be entered in writing in the minutes or journal of the court. (Perkins v. Loux, 14 Idaho 607, 95 P. 694.) There is no statute prescribing just how, or by whom the minutes or journal shall be kept. However, the practice has been firmly established, and should be recognized, of having the clerk enter in the minutes or journal a written statement of the action taken by the court. It is to such an entry that the above-mentioned statutes must refer. The letter of March 24th of itself was not an order. (Goade v. Gossett, 35 Idaho 84, 204 P. 670.) If Judge Church had signed the minute entry made by the clerk on March 24th it would certainly have constituted an order denying the motion for a new trial. Does the fact that he did not sign it prevent it from being an order? It is, of course, clear that the judge cannot be absolutely bound by the minute entries which the clerk may make. It is possible that the clerk may make mistakes. It is within the power of the court to correct such mistakes. If the clerk enters an order when none was made, the judge may cause it to be expunged. If the clerk incorrectly enters an order which was made, the court may correct the entry to speak the truth. (Garoutte v. Haley, 104 Cal. 497, 38 P. 194; Crim v. Kessing, 89 Cal. 478, 23 Am. St. 491, 26 P 1074; Paige v. Roeding, 96 Cal. 388, 31 P. 264; Cockrill v. Clyma, 98 Cal. 123, 32 P. 888; Clark v. Crane, 57 Cal. 629.)...

To continue reading

Request your trial
18 cases
  • Boise Ass'n of Credit Men, Ltd. v. United States Fire Insurance Co.
    • United States
    • United States State Supreme Court of Idaho
    • May 7, 1927
    ......4465 Supreme Court of Idaho May 7, 1927 . . APPEAL. AND ... . . APPEAL. from the District Court of the Third Judicial District, for. Ada ...( Rafferty v. State, 91 Tenn. 655, 16 S.W. 728; State v. McClar, ...986; C. S.,. sec. 7152, subd. 2; Spivey v. District Court, 37. Idaho 774, 219 P. 203; ......
  • Watson v. Navistar Intern. Transp. Corp., s. 16850
    • United States
    • United States State Supreme Court of Idaho
    • February 21, 1992
    ...823 P.2d 766 (1991) on rehearing); First Bank & Trust v. Parker Bros., 112 Idaho 30, 730 P.2d 950 (1986); see also Spivey v. District Court, 37 Idaho 774, 219 P. 203 (1923). A review of the record demonstrates the dilemma facing the trial court when presented with the second set of juror's ......
  • Baldwin v. Anderson, 5783
    • United States
    • United States State Supreme Court of Idaho
    • July 12, 1932
    ......5783 Supreme Court of Idaho July 12, 1932 . . ... . . APPEAL. from the District Court of the Third Judicial District, for. Ada ...( State. v. Winter, 24 Idaho 749, 135 P. 739; State v. ...Wyley, 24. Idaho 548, 135 P. 59; Spivey v. District Court, 37. Idaho 774, 219 P. 203; ......
  • Pfirman v. Probate Court of County of Shoshone, State, 6419
    • United States
    • United States State Supreme Court of Idaho
    • January 26, 1937
    ...... Terrell, 37 Idaho 767, 220 P. 411; Evans v. District. Court, 47 Idaho 267, 275 P. 99; Little v. Broxon, 31 ...348; Maxwell v. Terrell, 37 Idaho 767, 220 P. 411; Spivey v. District Court, 37 Idaho 774, 219 P. 203; Evans v. ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT