Spivey v. District Court of Third Judicial District of State

• Court: United States State Supreme Court of Idaho
• Writing for the Court: MCCARTHY, J.
• Citation: 37 Idaho 774,219 P. 203
• Decision Date: 03 October 1923
• Parties: JAMES 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

219 P. 203

37 Idaho 774

JAMES 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

Supreme Court of Idaho

October 3, 1923

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 [37 Idaho 775] 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

[37 Idaho 777] 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 [37 Idaho 778] by the court. June 1, 1923, defendant judge...