Marvin v. Pierson

BOND,- Chief Justice. Appellant instituted suit against appel-lee, on two notes of $238.56 each; appellee answered, denying liability on the notes and setting up cross-action over against appellant. On November 16, 1934, at a regular term of court, on its own motion and without the knowledge of either plaintiff or defendant, the court dismissed the suit for want of prosecution and entered judgment accordingly. On March 16, 1935, at a subsequent term, appellant learned of the judgment of dismissal, and presented in court an application, jointly signed by the attorneys for both plaintiff and defendant, which, after deleting the style and formal parts, reads: “It is hereby agreed between counsel for plaintiff and defendant that this cause be reinstated and placed upon the docket of this court and have the same status as before the time of dismissal; that said cause was’ dismissed by the court in the November term of said court and that there existed at that time an agreenjent between the counsel for plaintiff and defendant to pass said cause and it was not intended that it be dismissed. Wherefore, plaintiff and defendant pray the court that this cause be reinstated and placed back upon the docket of the court and have the same status as before dismissal; for trial during the May Term.” On March 19, 1935, on hearing the court sustained the application and entered judgment, reinstating the cause and placing same back upon the docket of the court in the status as before dismissal. On April 28, 1936, the defendant, appel-lee herein, filed motion to set aside the order entered on March 19, 1935, on the ground that the court, after judgment of dismissal, was without jurisdiction at a subsequent term of court to entertain the joint motion of plaintiff and defendant and reinstate the cause on the docket of said court. The court sustained defend *713 ant’s motion and entered judgment, setting aside the previous judgment of March 19, 1936, reinstating the cause, and dismissing appellant’s suit, from which this appeal is prosecuted. It will be observed that the application to reinstate the cause was a joint application of plaintiff and defendant to grant relief from a judgment of dismissal, entered without their knowledge and contrary to their agreement that the cause be continued, by which both parties were grievously affected. Manifestly, it was a modest appeal to the equitable powers of the qourt to right a wrong; and, while in form the application did not contain all the substantial requisites of an original application for a new trial in the nature of a bill of review, which, at that time, may have been available under our system of procedure, after the adjournment of the court for the term in which the judgment for dismissal was rendered (article 2236, R.S.) ; yet, we think, to have denied the relief would be to have allowed form to prevail over substance to the defeat of justice. It was then too late to file a motion for new trial, and the only thing open to the aggrieved parties was an appeal to the equitable powers of the court. This, the parties did and, we think, by their joint application, waived all the statutory requisites incident to a bill of review. The jurisdiction of the court over the persons of the parties was again invoked and, in the mode adopted, we think the court’s action thereon, reinstating the cause, was the exercise of its equitable powers, and the parties estopped to claim that such application was not in compliance with the procedural statutes relating to bills of review, or that the court was without jurisdiction to entertain the motion and reinstate the cause. Because the court erred in setting aside the judgment reinstating the cause, the judgment is reversed and the cause remanded for further proceedings, in accordance with this opinion. Reversed and remanded, with instructions to vacate the judgment setting aside the order reinstating the cause, and dismissing the suit, and allow the cause to remain on the docket for further proceedings, in accordance with the judgment of March 19th, 1936.