Young Mines Co. v. Blackburn

• Decision Date: 05 March 1921
• Docket Number: Civil 1824
• Citation: 196 P. 167,22 Ariz. 199
• Parties: YOUNG MINES COMPANY, LIMITED, a Corporation, Appellant, v. BEN L. BLACKBURN, Appellee
• Court: Arizona Supreme Court

196 P. 167

22 Ariz. 199

YOUNG MINES COMPANY, LIMITED, a Corporation, Appellant, v. BEN L. BLACKBURN, Appellee

Civil No. 1824

Supreme Court of Arizona

March 5, 1921

APPEAL from a judgment of the Superior Court of the County of Maricopa. R. C. Stanford, Judge, Affirmed.

Messrs Alexander, Christy & Baxter, for Appellant.

Messrs Dougherty & Dougherty and Mr. J. W. Pruitt, for Appellee.

OPINION

McALISTER, J.

This is an action under the Employers' Liability Law (Civ Code 1913, pars. 3153-3162) in which Ben L. Blackburn, appellee, seeks to recover damages for personal injuries alleged to have been received by him while in the employ of the appellant, Young Mines Company, Limited, a corporation. A trial before a jury resulted in a verdict for appellee in the sum of $3,500. This appeal is from a judgment on that verdict, from an order denying appellant's motion for a new trial, and "from the lack of jurisdiction of the court."

The complaint was filed June 16, 1915, to which answer was made in due time. The case was first set for trial for November 13, 1916, but, for some reason not disclosed by the record, was not then tried. It was again set for trial for May 17, 1917, and later for June 18, 1917. No further setting was made until March 3, 1919, when, at the request of counsel for appellee, April 24th following was appointed as the day for trial. Appellant's counsel, however, on April 23, 1919, gained the consent of counsel for appellee to a further continuance, and immediately thereafter visited the superior court for the purpose of having the trial order for the following day vacated, in accordance with this understanding, but while there ascertained from the clerk's records that the case had been dismissed by the court of its own motion on January 14, 1918, for want of prosecution. By letter he immediately informed counsel for appellee of this fact, stating at the same time that he was of the opinion that the court, by reason thereof, had lost jurisdiction to make any further order in the case. June 7, 1919, however, on motion of appellee's counsel, the cause was reinstated, and a trial thereafter had, resulting in a verdict on January 29, 1920. No appeal was taken from the order reinstating within either sixty days or six months from the date of the entry thereof, but notice of appeal from the judgment, the order denying the motion for new trial, and "from the lack of jurisdiction of the court" was given on March 6, 1920, and the appeal perfected and filed in this court on June 3d following.

The errors assigned are grouped under four propositions, namely: First, the jurisdiction of the court; second, the use of certain diagrams to illustrate testimony; third, the refusal to give certain instructions; and, fourth, the giving of certain other instructions.

The proposition upon which appellant chiefly relies is the order of the court reinstating the case after it had been dismissed for a period of nearly seventeen months; his contention being that the court lost jurisdiction to make any further order therein under the provisions of paragraph 600 of the Revised Statutes of 1913, which empowers the court to relieve against an order or judgment, under certain conditions, any time within six months after the entry or making thereof. If the court acted within the scope of its authority under the particular facts of this case in dismissing the action for want of prosecution, this contention would be correct, but the question arises whether appellant, in attempting to protect itself against the order thereafter made and entered reinstating the cause, pursued the remedy prescribed by statute. It is urged by appellee that, inasmuch as no appeal was taken from the order reinstating within sixty days from the making and entry thereof, appellant is precluded from thereafter raising the question, under the provisions of paragraph 1233 of the Revised Statutes of 1913, reading as follows:

"An appeal may be taken from a final judgment of the superior court in a civil action, or special proceeding commenced in such court, at any time within six months after the rendition of such judgment, and from any other judgment or order at any time within sixty days after the making of such order."

If the order of June 6, 1919, reinstating the cause is appealable this contention would seem to be well founded. An order reinstating, which is the same as an order vacating an order of dismissal, is in effect the reversal of a judgment in favor of the defendant; for it has the effect of depriving him of a judgment in his favor. Such an order having been made after a final judgment of dismissal, comes within the class designated in subdivision 2, paragraph 1227 of the Revised Statutes of 1913, as "special order made after final judgment." The appeal in the case of James et al. v. Center et al., 53 Cal. 31, was from an order vacating an order of dismissal, and the Supreme Court of that state, under a statute very similar to ours, said:

"The order appealed from was an order made after judgment, and therefore the subject of appeal."

And again in the case of Kaufman v. Superior Court, etc., 108 Cal. 446, 41 P. 476, the same court said:

"The order . . . setting aside the former judgment of dismissal was undoubtedly an appealable order, as expressly held in Livermore v. Campbell."

It is clear, therefore, that the order of reinstatement, having been made several months after the court entering it had lost jurisdiction to make any further order in the cause by reason of the provisions of paragraph 600 of the Revised Statutes of 1913 -- that is, provided the order of dismissal was made in the proper exercise of the court's power -- should have been appealed from, and the proceedings from then on treated as coram non judice, or application made to the proper court for a writ prohibiting further unauthorized action by the court in the absence of its jurisdiction. Appellant did not follow this course, but, after objecting to the order reinstating and to the proceedings thereafter taken, appeared at the trial and defended the action. In fact, up to April 23, 1919, when it was incidentally learned that the order of dismissal had been made, counsel for both sides and the court, as well, had treated the action as a live existing one, the same as though no order striking it from the calendar had been made. This is shown by the trial order made March 3, 1919, nearly fourteen months after dismissal, as well as by the fact that counsel for appellant obtained the consent of counsel for appellee on April 23, 1919, to a further continuance, and was in court for the purpose of making this effective when he learned of the dismissal. Under these conditions it must be held that appellant waived its objection to the reinstatement of the case, even though such order was made more than six months after the dismissal. Almost an identical situation was before the Supreme Court of Alabama in the case of Byrd v. McDaniel, 26 Ala. 582, and in disposing of it the following language was used:

"The chancellor was wholly without jurisdiction to reinstate this cause at a term subsequent to that at which it had been dismissed and finally disposed of, no motion having been made for reinstating at the term at which it was dismissed, and continued to such subsequent term. The defendant might, therefore, have treated the whole proceeding as coram non judice, after the cause was again put upon the docket, or (which would have been, perhaps, the more appropriate course) have applied to this court for the writ of prohibition, to arrest the unauthorized action of the chancellor in proceeding with a cause in the absence of jurisdiction. He did not, however, do this; but, when the cause was ordered to be reinstated, he appealed to this court, and, without taking any further steps, went on to engage in the defense, by crossing interrogatories, entering into consent, objecting to the proof as illegal, etc. Under these circumstances, the defendant must be considered as having waived his objection to reinstating the case. The case of Hair v. Moody, 9 Ala. 399, is an express authority to this point, and we are not disposed to depart from the principle of that decision."

The provision that the court loses jurisdiction to enter an order affecting the judgment at a subsequent term of the court, unless a motion to that effect has been made at the term the judgment was entered, is the same in principle as the provisions of paragraph 600 of Arizona's statute, giving the court jurisdiction over its judgments for a period of six months after their entry.

In the case of Grand Pacific Hotel Co. v. Pinkerton, 217 Ill. 61, 75 N.E. 427, the Supreme Court of Illinois used the following language:

"In addition to what has been said above, after this cause was reinstated the appellant appeared and took part in the proceedings, as appears from the recitation of facts already made. It thereby waived its right to except to the order of the court reinstating the cause. After the cause was reinstated the appellant should not have appeared at all, or, at most, should have confined itself to the resistance of any action proposed by the appellees."

Inasmuch as no action looking toward an appeal from the order vacating the order of dismissal was taken until a period of nine months had elapsed, when notice of appeal from the judgment from the order denying the motion for a new trial, and "from the lack of jurisdiction of the court" was given, it is not material to inquire whether such order should have been appealed from within six months or sixty days to constitute a waiver by appellant of the six months' limitation contained in paragraph 600. It is only necessary that it come within one class or the...