State v. State Journal Company

• Citation: 111 N.W. 118,77 Neb. 771
• Parties: STATE OF NEBRASKA v. STATE JOURNAL COMPANY
• Decision Date: 07 March 1907
• Court: Nebraska Supreme Court

111 N.W. 118

77 Neb. 771

STATE OF NEBRASKA v. STATE JOURNAL COMPANY

Supreme Court of Nebraska

March 7, 1907

Petition denied.

OPINION

LETTON, J.

Application has been made during the present term of the court to file an amended petition in this case. A final judgment of dismissal upon the demurrer to the petition being sustained, was entered at the September, 1906, term, since the plaintiff had formally announced that it would stand on its pleadings. The defendant contends that, since that term adjourned without further proceedings, the judgment entered was a final disposition of the case.

The action was brought under the original jurisdiction of this court, which is concurrent with that of the district court in like actions. Ordinarily a judgment of the district court after the adjournment of the term at which it was rendered, becomes final. The power of the district court to vacate or modify its judgments, after the expiration of the term at which such judgments or orders are made, is controlled by the provisions of sections 602-609 of the code. In Huntington & McIntyre v. Finch, 3 Ohio St. 445, it is said: "The court of common pleas has ample control over its own orders and judgments during the term at which they are rendered, and the power to vacate or modify them in its discretion. But this discretion ends with the term, and no such discretion exists at a subsequent term of the court." This rule has been repeatedly upheld in this state with reference to the powers of the district court. Smith v. Pinney, 2 Neb. 139; McBrien v. Riley, 38 Neb. 561, 57 N.W. 385; Ganzer v. Schiffbauer, 40 Neb. 633, 59 N.W. 98; Schuyler B. & L. Ass'n v. Fulmer, 61 Neb. 68, 84 N.W. 609; Sherman County v. Nichols, 65 Neb. 250, 91 N.W. 198. Section 610 of the code provides as follows: "The provisions of this title subsequent to section 601 shall apply to the supreme court and probate court, so far as the same may be applicable to the judgments or final orders of such courts." These provisions of the statute place it beyond the power of the court in an original cause at a subsequent term to set aside a judgment and permit an amendment of a petition, except in the manner and for the reasons prescribed in section 602.

Independent of these provisions, we are of the opinion that under the statutes we have no power to allow the amendment at this time. A discussion of the rules relative to original actions in the supreme...