Mountain States Implement Co. v. Arave

GIVENS, J. December 20, 1929, the clerk of the trial court entered on a jury’s verdict a judgment in favor of *626 respondent. March 12, 1930, the court denied motions filed by defendants Arave to vacate and set aside the verdict and judgment,' but on his own motion, Mareh 12, 1930, the same day, entered an order vacating the judgment, which order on appeal (Mountain States Implement Co. v. Arave, 49 Ida. 710, 291 Pac. 1074), was held unauthorized. There was heretofore no appeal from the original judgment. October 21, 1930, the trial court, remittitur in the above appeal having been filed October 16, 1930, vacated its former order- and ordered the judgment of December 20, 1929, reinstated; an unnecessary and ineffective provision, since the judgment had never been dethroned. October 21, 1930, the appeal herein was taken from the judgment, which appeal respondent moves to dismiss as filed too late. We have carefully examined the more recent authorities passing upon this point, and the following cases held that proceedings, ineffective as to the previous judgment, toll the statute during the time they are in operation, or being considered by the trial court: Rogers v. Savage, 117 Wash. 521, 201 Pac. 768; In re German Ditch Co., 56 Colo. 252, 139 Pac. 2; Kamoss v. Kansas City R. Co., (Mo. App.) 202 S. W. 434; Scott v. Rees, 300 Mo. 123, 253 S. W. 998; St. Clair v. Conlon, 12 App. D. C. 161; Southern Pac. Co. v. Sartoris, 27 Fed. (2d) 852. The following authorities hold that such proceedings do not toll the statute: Miller v. Prout, 32 Ida. 728, 187 Pac. 948; Walton v. Clark, 40 Ida. 86, 231 Pac. 713; Boam v. Sewell, 41 Ida. 718, 241 Pac. 1020; Pedigo v. Fuller, 37 Wash. 529, 79 Pac. 1129; Hahn v. Astoria Nat. Bank, 63 Or. 1, 114 Pac. 1134, 125 Pac. 284; Spotton v. Superior Court, 177 Cal. 719, 171 Pac. 801; In re Big Bend Drainage Irr. Dist., 29 Wyo. 50, 208 Pac. 872; First Nat. Bank v. Chowning, 95 Okl. 137, 218 Pac. 676; Burch v. Smith, 30 Wyo. 237, 218 Pac. 791; Scott v. Woodhams, 79 Colo. 528, 246 Pac. 1027; Western Land & Irr. Co. v. Humfeld, 118 Or. 416, 247 Pac. 143; Kline v. Murray, 79 Mont. 530, 257 Pac. 465; Alvarado v. Stanton, 204 Cal. 172, 267 Pac. 313; Oxford Tel. Co. v. Arkansas Nat. Bank, 134 Ark. 386, 204 *627 S. W. 1140; Jowell v. Lamb, (Tex. Civ. App.) 207 S. W. 987; Pearce v. People’s Sav. Bank, 152 Ark. 581, 238 S. W. 1063; Central Liberty Trust Co. v. Roy, 212 Mo. App. 680, 245 S. W. 1085; Dent v. Farmers’ & Merchants’ Bank, 162 Ark. 325, 258 S. W. 322; Beach v. Beach, 160 App. Div. 229, 145 N. Y. Supp. 409; Hild v. McClintic-Marshall Co., 216 App. Div. 770, 215 N. Y. Supp. 88; Stamfer v. Peter Hand Brewing Co., 67 Ind. App. 485, 118 N. E. 138; Wyant v. Russell, 109 Ohio St. 167, 142 N. E. 144; Neighbors v. Thistle Down Co., 26 Ohio App. 324, 159 N. E. 111; In re Shimmer’s Estate, 146 Minn. 429, 178 N. W. 954; In re Bocky Bun Drainage Dist., 184 Wis. 557, 200 N. W. 384; Levine v. Roth, 276 Pa. 244, 120 Atl. 115; United States v. Fidelity & Dep. Co., 155 Fed. 117; Collins Pav. Co. v. Holseapple, 221 Ala. 308, 128 So. 599; J. S. Bache & Co. v. Locke, 86 Pa. Super. Ct. 501; Meadville Tel. Co. v. Shafer, 94 Pa. Super. Ct. 246; Buckley v. Sutton, 38 Mich. 1; Quinn Chapel A. M. E. Church v. Pease, 66 Ill. App. 552; Morder, Luse & Co. v. Campbell Printing Co., 76 Ill. App. 431. It must be kept in mind that the order vacating the judgment was void. In the case at bar, the court had no jurisdiction to issue the order setting aside the previous judgment. A void order is of no effect whatever. (Williams v. Sherman, 36 Ida. 494, at 503, 212 Pac. 971; Johnson v. Carroll, 190 Ky. 689, 228 S. W. 412; White v. Hidalgo County Water Imp. Dist., (Tex. Civ. App.) 6 S. W. (2d) 790; Simmons v. Hefter, 308 Ill. 292, 139 N. E. 404; People v. Miller, 339 Ill. 573, 171 N. E. 672; In re Wooley’s Estate, 96 Vt. 60, 117 Atl. 370; Hunt v. Kennedy Coal Corp., 140. Va. 17, 124 S. E. 189; United States ex rel. Bauch v. Davis, 56 App. D. C. 46, 8 Fed. (2d) 907.) It is urged that a distinction is to be made in favor of appellant herein, by reason of the fact that the court entered the order of its own motion, not on appellant’s motion. It is doubtful if much effect may be given such contention in the action herein, in view of the record, which shows that while the court entered this order on his own *628 motion, it was on the very day he denied appellant’s motion seeking the same thing. The authorities above cited, pro and con, do not appear, however, to take as the foundation for their ruling, action based on appellant’s motion, rather than on the court’s own initiative, reasoning that because the order, however prompted, is void, stands undisturbed, and the appeal therefrom, not in time, confers no jurisdiction on the appellate court, which, as to the last, was the express pronouncement in Miller v. Prout, supra, at page 731: “This appeal not having been perfected within ninety days from the entry of the original judgment, conferred no jurisdiction.upon this court,” — and in the same opinion, the court held that an appeal would lie from the judgment which it was sought to vacate, while an appeal was pending from an order vacating such judgment, the court saying: • “The proceeding under this statute is an independent proceeding and exists concurrently with the right of appeal from the judgment. Any order made pursuant to such a proceeding does not operate to extend the time for appeal from the judgment. The proper course is to appeal from the judgment if it is desired to have the judgment reviewed 'and to apply to the trial court for relief under this section, notwithstanding such appeal.” The order in the instant case was none the less void because made on the court’s own motion. It appears, therefore, by numerical weight and •better reasoning, the authorities hold that a void order does not operate as a stay, or toll the statutory time for appeal. “The code provisions limiting the time in which to appeal are mandatory, and the time limited cannot be extended by the court, dr by any circumstances, except by the pendency of proceeding's on motion for a new trial.” (2 Cal. Jur., sec. 171, p. 404.) The exception is provided for by special statute passed in 1915, and the doctrine is laid down in Leake v. City of Venice, 43 Cal. App. 568, 185 Pac. 424. We do not have such a statute. *629 Where the order vacating the judgment is a nullity, the statute begins to run from the rendition or entry of the judgment vacated. (3 C. J., sec. 1052, p. 1055.) Appeal dismissed; costs to respondent. Lee, C. J., and Yarian, J., concur. Petition for rehearing denied.