Zelig v. Blue Point Oyster Co.

• Decision Date: 07 March 1911
• Citation: 113 P. 852,61 Or. 535
• Parties: ZELIG v. BLUE POINT OYSTER CO. et al.
• Court: Oregon Supreme Court

113 P. 852

61 Or. 535

ZELIG v. BLUE POINT OYSTER CO. et al.

Supreme Court of Oregon

March 7, 1911

On Petition for Rehearing, April 4, 1911

Appeal from Circuit Court, Multnomah County; W.N. Gatens, Judge.

Action by M.A. Zelig against the Blue Point Oyster Company and another. Judgment for plaintiff. Defendants appeal. Dismissed.

In this case, after a trial before the court, a judgment was rendered and entered of record February 26, 1910, at the February term of the circuit court of Multnomah county. On March 3, 1910 upon a stipulation of the parties, the court ordered "that the defendants have up to and including the 5th day of March, 1910, in which to file exceptions to the findings of fact and conclusions of law heretofore signed and entered by the court February 26, 1910, in favor of plaintiff, and to offer findings of fact and conclusions of law on behalf of the defendants, and that all of the same may be filed nunc pro tunc as of February 26, 1910." Nothing, however, was filed in pursuance of this order until March 7th, that being the first day of the succeeding March term of the circuit court. On March 22, 1910, on the ex parte application of plaintiff's counsel, the court entered an order vacating the judgment of February 26, 1910, and directing that the case be considered as waiting the action of the court upon the findings of fact and conclusions of law and the exceptions of the defendants to the same, and the request of the defendants that the court make other findings. On March 26th both parties appeared, and, after argument, the court overruled the defendants' exceptions and their request that the court make other findings. On March 29th both parties appearing, after argument the court entered an order vacating the order of March 22, 1910, which was itself an order vacating the judgment of February 26, 1910, and reinstated the judgment of February 26th. From time to time thereafter the defendants applied to the circuit court and were granted in all five extensions of time in which to file a transcript in this court, and finally, on September 30 1910, on motion of the defendants and by consent of the plaintiff, the circuit court ordered "that defendants have up to and including the 2d day of October, 1910, in which to prepare and file a transcript of the record herein in the Supreme Court of the state of Oregon." The transcript was filed in this court October 3, 1910. The plaintiff and respondent now moves to dismiss the appeal for two reasons, in substance: First, because the orders made by the circuit court during its March term are final orders, and from them and not from the judgment of February 26th rendered at the February term must the appeal be taken; and, second because the transcript was not filed within the time allowed by the order of September 30, 1910.

Claude Strahan and Waldemar Seton, for appellants.

Julius Silverstone, for respondent.

BURNETT J. (after stating the facts as above).

The court having rendered a final judgment on February 26, 1910, its power to amend the same lapsed with the end of the February term except for mere clerical errors, but not for matters of substance, unless the court retained its jurisdiction over it for subsequent purposes by means of the filing of a motion for a new trial or some such means. Opportunity was given thus to keep the judgment within the breast of the court

by filing exceptions to the findings and a motion to the court to render other findings, but this opportunity was allowed to lapse, and, so far as the record before us discloses, nothing was done at the February term that would retain the judgment in this case within the bosom of the court; hence the power of the court over that judgment ceased with the end of its February term. Deering v. Quivey, 26 Or. 556, 38 P 710; Henrichsen v. Smith, 29 Or. 475, 42 P. 486, 44 P. 496; Alexander v. Ling, 31 Or. 222, 50 P. 915. Therefore the orders of the court rendered at its March term in this action may be considered void, and, although as such void orders they might be appealable on the doctrine of Smith v. Ellendale Mill Co., 4 Or. 70, and kindred cases, yet, being void, neither they nor the appeal therefrom would affect the judgment of February 26th. By an appeal from the void judgment, the records might be purged of such useless matter, but it is apprehended that the power of the appellate court could go no further than this. The order of September 30th in terms allowed the appellant "up to and including the 2d day of October, 1910," in which to file a transcript on appeal in this court. The appellants contend that because October 2,...