Vane v. Jones

• Decision Date: 05 January 1907
• Parties: WILLIAM VANE and MARY VANE, Respondents, v. GEORGE H. JONES, Appellant
• Court: Idaho Supreme Court

88 P. 1058

13 Idaho 21

WILLIAM VANE and MARY VANE, Respondents, v. GEORGE H. JONES, Appellant

Supreme Court of Idaho

January 5, 1907

JUDGMENT-MOTION TO VACATE.

1. Held, that the motion supported by affidavit is too late, and is not sufficient to warrant the vacating and setting aside of the judgment and order entered by the trial court.

(Syllabus by the court.)

APPEAL from the District Court of First Judicial District for Kootenai County. Hon. Ralph T. Morgan, Judge.

Motion supported by affidavit to vacate and set aside a judgment. Motion denied from which an appeal is perfected. Judgment and order affirmed.

Judgment affirmed, with costs to the respondents.

R. L Edmiston and Thos. H. Wilson and Wm. T. Birdsall, for Appellant.

The affirmance of the original judgment by default in this court and the similar decisions in the case of Jones v. Vane brought to set aside that judgment, to the effect that the plaintiff had not shown sufficient equities to entitle him to the relief, was not a decision of any of the questions involved in that appeal, and we are justified in reason, by precedent and by authority, in claiming that the questions come before this court now as original questions for determination.

Says Van Cleif, C., in Pioneer Land Co. v. Maddux, 109 Cal. 633, 642, 50 Am. St. Rep. 67, 73, 42 P. 295, quoting with approval from Wilson v. Montgomery, 14 Smedes & M. 205-207: "The affirmance of a void judgment on appeal, upon grounds not touching, but overlooking, its invalidity, did not make it valid." (Gille v Emmons, 58 Kan. 118, 62 Am. St. Rep. 609, 48 P. 569; Furman v. Furman, 153 N.Y. 309, 60 Am. St. Rep. 629, 47 N.E. 577, and notes to case.)

We now urge that the entering of this judgment and the sustaining of this judgment, in view of the questions involved and the facts, is not due process of law within the meaning of the federal constitution.

Section 4229, Revised Statutes, has no application here, as we are not seeking relief on grounds of "mistake, inadvertence, surprise or excusable neglect," but upon the broad ground that there is no judgment, except in form; and we are asking the removal of this form, that has no substance, power or virtue, from the records of the court, because the trial court had no power or jurisdiction over the subject matter. (People v. Greene 74 Cal. 400, 5 Am. St. Rep. 448, 16 P. 197.)

It has been frequently held that a judgment which is absolutely void may be vacated at any time, and that the right to have such judgment set aside is not lost by delay, regardless of whether or not the time for making application is limited by statute, citing many cases. (17 Am. & Eng. Ency. of Law, 2d ed., 825, 842; Black on Judgments, 2d ed., sec. 307; People v. Temple, 103 Cal. 447, 37 P. 414.)

Chas. L. Heitman, for Respondents.

The contention of appellant that there was a defect of parties in said former action, in that the state of Idaho was not represented, even if well founded, comes too late, as the objection should have been made by demurrer to the amended complaint. (Rev. Stats., sec. 4174, subd. 4.) Respondents contend that the entire matter has been adjudicated and finally determined, and that the district court's decision, affirmed by this supreme court, is the settled law of the case.

A judgment is conclusive upon all questions involved in the action and upon which it depends, and upon matters which, under the issues, might have been litigated and decided in the case; and the presumption of law is that all such issues were actually heard and decided. (Parnell v. Hahn, 61 Cal. 131; McLennan v. McDonnell, 78 Cal. 275, 20 P. 566; Benson v. Shotwell, 87 Cal. 49, 25 P. 249; Hardy v. Hardy, 97 Cal. 125, 31 P. 906; Freeman on Judgments, sec. 253; Lillis v. Emigrant Co., 95 Cal. 553, 30 P. 1108; Wolverton v. Baker, 98 Cal. 631, 33 P. 731; Howell v. Budd, 91 Cal. 342, 27 P. 745; Burris v. Kennedy, 108 Cal. 338, 41 P. 458; Estate of Hudson, 63 Cal. 457.)

This question was not only litigated on the trial in the district court, but was sought to be reopened and relitigated by appellant in his action brought for the direct purpose of vacating and setting aside said judgment, which contention was decided against appellant by this court in its decision rendered in the case of Jones v. Vane, 11 Idaho 353, 82 P. 110, in which the court held as follows: "The appellant has had his day in court, and the judgment entered against him has become final, and is the law in all subsequent proceedings between the same parties in reference to the same subject matter." Even were this court of the opinion that this judgment had been erroneously rendered, it would still be res adjudicata, a bar to the appellant, and a protection to the respondents. (Case v. Beauregard, 101 U.S. 692, 25 L.Ed. 1004; 9 Notes on U.S. Rep. 1016, citing cases; Klauber v. Car. Co., 98 Cal. 105, 32 P. 876.)

The dismissal of the appeal in the first instance for failure to file transcript, as was the case in this cause, is a bar to another appeal, unless such dismissal was made without prejudice to a second appeal, in this case. (Fahey v. Belcher, 3 Idaho 644, 32 P. 1135.)

This court has no power to review its decisions, except upon petition for rehearing properly presented within the time prescribed by the rule of this court. After the expiration of that time, a judgment becomes finally binding and conclusive. (Skillern's Exrs. v. May's Exrs., 6 Cranch, 267, 3 L.Ed. 220; Martin v. Hunter's Lessee, 1 Wheat. 304, 4 L.Ed. 27; Durant v. Essex Co., 101 U.S. 555, 25 L.Ed. 961; State v. Waupaca Co. Bk., 20 Wis. 641; Flournoy v. Bullock, 11 N. Mex. 87, 66 P. 547, 55 L. R. A. 745; Dye v. Crary (N. Mex.), 85 P. 1038; 3 Century Digest, secs. 4358-4368; Phelan v. San Francisco, 20 Cal. 39.)

STOCKSLAGER, C. J. Ailshie, J., concurs. Sullivan, J., dissents.

OPINION

STOCKSLAGER, C. J.

For the early history of this litigation, see Jones et al. v Vane et al., 11 Idaho 353, 82 P. 110. From that judgment appellant Jones sued out a writ of error to the supreme court of the United States; there the case was dismissed on motion of the Vanes on the ground that there was no federal question involved. Thereafter Jones moved in the district court to vacate and set aside the judgment. It is not shown by the record when that motion was filed or that it was ever filed. However, it is shown that on the tenth day of February, 1906, counsel for Jones served the Vanes and Chas. L. Heitman, their attorney, with notice that on the twenty-sixth day of February, 1906, the motion would be heard at the judge's chambers at Rathdrum, Idaho. The grounds for vacating and setting aside the judgment as alleged in the motion are: "1. Said judgment and decree is void, in that the court had no jurisdiction of the subject matter of the action, to wit, the lands constituting the shore and bed of the Pend d'Oreille river below high-water mark, opposite government lots 1 and 2, section 24, township 56 north, range 6, W. B. M., upon which the wharf and steamboat landing in controversy in said action is located. It appears as a matter of record, and the court must take judicial notice of the fact, that the fee of the lands referred to, being a part of the shore and bed of a large interstate, navigable river, is vested in the state of Idaho and that the plaintiffs in this action never had any interest therein; the court possessed no jurisdiction to adjudge the question of title or right of possession of said land, in that it never acquired jurisdiction over the state of Idaho who, it appears from the record, was a necessary party to this action, and without whose presence no determination of the controversy could be had. 2. The decisions of the supreme court of the United States, as expressed in Shively v. Bowlby, 152 U.S. 1, 38 L.Ed. 331, 14 S.Ct. 548, and other decisions were and are the law of the state of Idaho and controlling upon the courts and upon this court in the matters in controversy in this action. 3. Said judgment and decree is also void, for the reason that the same is too indefinite and uncertain for enforcement, and is incapable of execution. 4. Said judgment is also void in this: That the steamboat landing in controversy is situated in a public highway as the same comes down to, through and across the Pend d'Oreille river, all of which appears by the record herein." This motion was supported by the affidavit of Robert E. Edmiston, one of the attorneys for Jones, who testifies that the appeal from the judgment to the supreme court was dismissed for want of prosecution, and that the failure to prosecute was the fault of the attorney who was then acting as the attorney for the defendant, and without any fault or neglect on the part of defendant; that by operation of the statute such dismissal had the effect of an affirmance of the judgment; that the matter in controversy herein has never passed the judgment of the supreme court; that after such dismissal deponent was retained as attorney for defendant and made an application to the supreme court to vacate said dismissal, and the application was denied upon the ground that it was too late. Thereafter deponent, on behalf of said defendant, commenced an action in this court...