State v. District Court of Tenth Judicial Dist. in and for Fergus County

• Decision Date: 14 April 1919
• Docket Number: 4369.
• Citation: 179 P. 831,55 Mont. 602
• Parties: STATE ex rel. SMITH v. DISTRICT COURT OF TENTH JUDICIAL DIST. IN AND FOR FERGUS COUNTY et al.
• Court: Montana Supreme Court

179 P. 831

55 Mont. 602

STATE ex rel. SMITH v. DISTRICT COURT OF TENTH JUDICIAL DIST. IN AND FOR FERGUS COUNTY et al.

No. 4369.

Supreme Court of Montana

April 14, 1919

Certiorari by the State, on the relation of William G. Smith, against the District Court of the Tenth Judicial District in and for the County of Fergus, and Roy E. Ayers, a Judge thereof, to annul an order in so far as it directs divorce decree in favor of relator in suit wherein he was plaintiff, and his wife, Myrtle D. Smith, defendant, to be stricken from the files and records of the case, and further hearing to be had in the case. Order annulled.

Edgar G. Worden, of Lewiston, and Ulysses A. Gribble and Hugh R Adair, both of Helena, for relator.

Odell W. McConnell, of Helena, for respondents.

BRANTLY C.J.

Certiorari to the district court of Fergus county. The record discloses that on November 13, 1918, the relator brought his action against the defendant, who had left the state and become a resident of the state of Kentucky, to obtain a decree of divorce on the ground of desertion. Instead of service of summons by publication under section 6520 of the Revised Codes, personal service was had upon the defendant, as provided in section 6521. The proof of service was made by affidavit, which, omitting formal parts, is the following:

"W H. Myers, being first duly sworn, says: That I received the within summons on the 18th day of November, 1918, that I personally served the within summons on the 19th day of November, 1918, upon Myrtle D. Smith, the defendant named therein, by delivering a copy of said summons to her personally in the said county of Warren; that at the time when I served the within summons upon the said Myrtle D. Smith, and at the same place, I also served upon her a copy of the complaint upon which said summons was issued, by delivering said copy to her personally. W. H. Myers, D. S."

Defendant having failed to appear in the action, her default was entered on December 31st. On January 7th of this year the court, Hon. Roy E. Ayers presiding, heard the evidence submitted by plaintiff, made its findings of fact and conclusions of law, and rendered and signed a decree granting him a divorce. On the same day, before the decree was entered and without notice to counsel, the court of its own motion amended its order granting the decree. The amended order is as follows:

"This cause came on regularly to be heard this day, Mr. E. G. Worden appearing as counsel for plaintiff, defendant not appearing. The court now heard the proofs offered, the testimony of William G. Smith, who was now duly sworn and examined on behalf of plaintiff, and, the court being fully advised in the premises, thereupon it was ordered, adjudged, and decreed that plaintiff have decree of divorce. It having come to the knowledge of the court ex parte that the court was without jurisdiction to grant the decree above ordered, for the reason that the plaintiff had not been deserted by the defendant for more than one year prior to his filing a complaint herein praying for divorce on the ground of desertion, and, the court being satisfied upon such information that further proof is necessary in the said case, it is hereby ordered that the said decree heretofore on this day made and signed in the case be, and the same is hereby, ordered stricken from the files and records of the case, and the case is continued for further hearing and evidence. And it is further ordered that the plaintiff and his counsel be notified of this order."

The plaintiff then instituted this proceeding to have the order annulled in so far as it directed the decree to be stricken from the files and records of the case and a further hearing to be had.

It will be observed that the court in amending the original order did not formally set it aside or vacate the decree, but the effect of the amendment was to annul all former proceedings and leave the case in the condition in which it stood before the trial. In other words, by making the amendment to the order, the court in effect, on its own motion, awarded a new trial on the ground of newly discovered evidence; for, notwithstanding the order recites that the court was without jurisdiction to grant the decree, the recital, "It having come to the knowledge of the court ex parte that the court was without jurisdiction *** for the reason that the plaintiff had not been deserted by the defendant for more than one year," etc., means nothing more nor less than that evidence had come to the knowledge of the court other than that submitted at the hearing. Hence its conclusion that its finding in this regard on the evidence submitted ought to have been other than that made.

This court pointed out in the early cases of Whitbeck v. Railway Cos., 21 Mont. 102, 52 P. 1098, and Ogle v. Potter, 24 Mont. 501, 62 P. 920, that in this state relief by way of new trial can be granted only in the manner, within the time and upon the grounds provided in the statute, and that, in the absence of observance by the moving party of the required steps, the court has no power to grant a new trial. The conclusion announced in these cases has been since adhered to. Porter v. Industrial Printing Co., 26 Mont. 170, 66 P. 839, 67 P. 67; State ex rel. Walkerville v. District Court, 29 Mont. 176, 74 P. 414. A necessary result of this rule is that a court has no power to grant a new trial of its own motion. It may amend its judgments in order to make them express what was actually decided. This may be done at any time, though the particular judgment has been entered by the clerk. A mistake by this officer in making the entry does not bind the court; nor will it be permitted to prejudice rights of parties. But when the court has once rendered its judgment as intended, though it may be erroneous, it becomes final, and must stand until it has been revised and corrected by some method pointed out by the statute, generally through a motion for a new trial made by the losing party in the ordinary way, or on appeal. Whitbeck v. Railway Cos., supra; State ex rel. McHatton v. District Court, 55 Mont.324, 176 P. 608.

There may be a question whether the foregoing rule applies in those districts in which there are regularly fixed terms for holding court. Under the rule observed by the English courts and by the courts of those states in which the common-law practice prevails, a judgment rendered during the term may be revised at any time before the end of the term, because...