State v. District Court of First Judicial Dist. in and for Lewis and Clark County

• Decision Date: 22 March 1915
• Docket Number: 3640.
• Citation: 147 P. 614,50 Mont. 435
• Parties: STATE EX REL. WORKING ET AL. v. DISTRICT COURT OF FIRST JUDICIAL DIST. IN AND FOR LEWIS AND CLARK COUNTY ET AL.
• Court: Montana Supreme Court

147 P. 614

50 Mont. 435

STATE EX REL. WORKING ET AL. v. DISTRICT COURT OF FIRST JUDICIAL DIST. IN AND FOR LEWIS AND CLARK COUNTY ET AL.

No. 3640.

Supreme Court of Montana

March 22, 1915

Original certiorari proceeding by the State, on the relation of Lincoln Working and others, against the District Court of the First Judicial District in and for the County of Lewis and Clark and James M. Clements, as Judge thereof. Motion to quash overruled, and order of the district court annulled.

Ed Phelan and J. H. Brass, both of Helena, for respondents.

BRANTLY C.J.

Certiorari. In an action pending in the district court of Lewis and Clark county, entitled "Frank Ernst v. Lincoln Working et al.," the relators herein, the defendants suffered default for failing to answer after their demurrer to the complaint had been overruled. Default was entered on January 16, 1915. They thereafter moved the court to set aside the default. This motion was denied on February 8th. The court thereupon appointed March 1st for a hearing upon the question of the amount of damages plaintiff was entitled to recover. On February 25th, upon application of defendants, the court made an order granting them leave to renew their motion to set aside the default. Hearing upon the motion was set for February 27th, the court making an order shortening the time for the giving of notice. At the time this order was made the defendants exhibited to the court, Hon. J. M. Clements presiding, the affidavits which they intended to file setting forth the grounds of their motion, to which was attached their proposed answer, duly verified. Thereafter these, together with the motion, were filed with the clerk. During the afternoon of the same day the defendants filed an affidavit alleging that Judge Clements was disqualified by reason of his bias and prejudice to hear the motion or to hear the cause. Later in the afternoon, and after the affidavit had been called to his attention, Judge Clements revoked the order granting leave to renew the motion. Thereupon this proceeding was brought to have the order of revocation annulled as in excess of jurisdiction.

At the hearing, counsel for defendants herein interposed a motion to quash the writ and dismiss the proceeding on several grounds which together present the single question whether, upon the facts recited above, the relators are entitled to relief. The legal effect of the order granting leave to renew the motion was not, as counsel seem to think, merely to give the relators the opportunity to appear in court on February 27th and disclose their reasons why the rehearing should be had but to annul the order of February 8th denying the motion to vacate the default and to set the hearing upon the motion. It reinstated the motion for hearing on its merits, just as if the order denying it had never been made. The office of the order was the same as an order by this court granting a rehearing upon petition under the rule (44 Mont. xxxvi, 123 P. xiii, par. 13) after a cause has been heard and determined. When such a rehearing is granted, the cause stands open as if it had never been heard, unless the order limits the scope of the argument or designates the particular point or points upon which further argument is desired. That a trial court has the power to grant a rehearing upon a motion, we do not think is open to question. A decision upon the motion has not the force of a former adjudication, in the same sense as a judgment finally settling the controversy. When a final judgment has once been rendered, it cannot be set aside by the court which has rendered it, except upon motion for a new trial or some other method authorized by statute, and, unless void upon its face, it is conclusive as to the matter adjudged upon the parties and their successors. Rev. Codes, § 7914. A decision upon a motion, so long as it stands, is conclusive in subsequent controversies when it has adjudicated some substantial right, especially if it is made upon a full hearing of controverted facts, and may be reviewed by appeal. Riggs v. Pursell, 74 N.Y. 370. The power of review, by the court making it, is not often limited by statute, and it is generally held that it is within the discretion of the court to reconsider its decision on a motion when additional facts are presented, or defects in the proof are supplied, or even upon the same state of facts, though in the latter case the power is rarely exercised. Riggs v. Pursell, supra. In Kenney v. Kelleher, 63 Cal. 442, it was said:

"Leave to renew a motion (to vacate a default) may be given after the original motion is denied, and the granting * * * of leave is within the legal discretion of the court, and will not be interfered with except in case of abuse; and it is not an abuse to grant leave upon the same facts more fully stated."

The following cases support the rule thus stated: Hitchcock v. McElrath, 69 Cal. 634, 11 P. 487; Adams v Lockwood, 30 Kan. 373, 2 P. 626; Carlson v. Carlson, 49 Minn. 555, 52 N.W. 214; Stacy v. Stephen, 78 Minn. 480, 81 N.W. 391; Stutzner v. Printz, 43 Neb. 306, 61 N.W. 620; Riggs v. Pursell, supra; Fisk v. Hicks, 29 S.D. 399, 137 N.W. 424, Ann. Cas. 1914D, 971; Clein v. Wandschneider, 14 Wash. 257, 44 P. 272. See generally, also, 28 Cyc....