Ayers v. Anderson-Tully Co.

McCureoch, J. In January, 1907, appellant's, SalHe. J. Ayers and others, the widow and children of E. M. Ayers deceased, commenced an action in the circuit court of Mississippi County against appellee to recover possession of lands described in the complaint. Summons was duly issued, and on January 15, 1907, was served on appellee’s agent, requiring it to answer at the next term of the court, which convened on May 6, 1907. On February 5, 1907, appellant’s attorney made an indorsement on the circuit court docket to the effect that appellee’s tenant had vacated the lands, and that they (appellants) elected to transfer the cause to the chancery court. The clerk of the court thereupon made the following indorsement, duly signed, on the docket, to-wit: “I hereby transfer the above cause to the chancery court.” The cause was docketed in the chancery court, and on April 9, 1907, without appellee having appeared, the court rendered a final decree by default in favor of appellants, confirming their álleged title to the lands in controversy. On April 3, 1907, appellee without any notice of the attempted transfer of the case to the chancery court, filed in the circuit court a petition and bond in due form for removal of the cause to the circuit court of the United States. On the third day of the next succeeding term of the chancery court appellee filed its petition asking that the decree rendered at the preceding term be vacated on the ground that the attempted transfer from the circuit court to the chancery court was a misprision of the clerk, and that the cause never stood for trial in the chancery court. This petition was heard at the March term, 1908, and, in accordance with the prayer thereof, the former decree was vacated and set aside. From the order setting aside the former decree appellants took an appeal to this court. Appellee now moves' to dismiss the appeal on the ground that the order was not appealable. It is only from final judgments and decrees which conclude the rights of the parties with respect to the subject-matter of the controversy that appeals may be taken to this court; and it must be conceded that an order vacating a judgment or granting a new trial made at the term during which the judgment was rendered is not appealable except on the terms prescribed by tha statute. The statute provides that “no appeal to the Supreme iCourt from an order granting a new trial, .in a case made or bill of exceptions, shall be effectual for any purpose unless the notice of appeal contains an assent on the part of the appellant that, if the order be affirmed, judgment absolute shall be rendered against the appellant.” Kirby’s Digest, § ir88. This statute obviously has no application to an order made vacating judgments rendered at a former term of the court. A count, after the lapse of a term, loses control over its final judgments, and, in the absence of a statute conferring such power, cannot at a subsequent term alter or vacate them. Johnson v. Campbell, 52 Ark. 316. The statutes of this State confer such power, but only in such manner and upon certain terms which are prescribed. Kirby’s Digest, § § 4431-4437. The proceeding, under the statute, to have a judgment set aside which was rendered at a former term is equivalent to- an independent action instituted for that purpose, and -the order of the court either vacating the judgment or refusing to do so is final in the sense that it determines the rights of the parties under the judgment; even though, after vacating the judgment, it leaves the original action still pending for further proceedings. Huntington v. Finch, 3 Ohio St. 445; Braden v. Hoffman (Ohio), 22 N. E. 930; Weber v. Tschetter, (S. D.) 46 N. W. 201; Joyce v. New York, 20 How. Prac. 439; Henderson v. Gibson, 19 Md. 234; Curtiss v. Bell, (Mo.) 111 S. W. 131. The Ohio court, in construing a statute similar to the one prevailing in this State with reference to appeals, said: “The court of common pleas has ample control over its own orders and judgments' during the term at which they are rendered, and the power to vacate or modify them in its discretion. But this discretion ends with the term, and no such discretion exists at a subsequent term of the court. And the power of the court to set aside or vacate its judgments, subsequent to the judgment term, is governed by settled principles, and for a departure from which any judgment or order may be subject to be reviewed and reversed, on proceedings in error.” Huntington v. Pinch, supra. The Maryland Court of Appeals in Graff v. Merchants, etc., Co., 18 Md. 371, said that the authorities which hold that an order is not appealable which does not conclude the rights of the parties and deny the means of further prosecuting or defending the suit are to be “understood as applicable to cases where the judgment appealed from is entered while the cause is in fferi, and not as -embracing those where the plaintiff has obtained a final judgment, and the term has passed.” We conclude that the order of the chancery court vacating the decree rendered at the former term is appealable, and that the question is properly before us for review whether or not the decision was correct. That question was fully argued by counsel in their briefs', and we may as well dispose of the case now without waiting for it to be reached regularly on the calendar. The case was never properly transferred to the chancery court, and that court acquired no jurisdiction to render a decree. Appellee was summoned to answer the complaint in the circuit court, and before the return day of the writ it appeared and filed petition and bond for removal to the Federal Court. The statute does not impower the clerk to order transfer of causes from the circuit court to the chancery court or vice versa. This can be done only by an order of the court. Neither can a plaintiff, after he has instituted his action in one court and caused summons to issue requiring a defendant to answer in that court, transfer the case to another court, except by dismissing if and instituting it anew in the other court. The chancery court never acquired jurisdiction over appellee, the decree was void, and the court properly set it aside. The facts which defeat the jurisdiction of the chancery court appeared affirmatively on the face of the record, therefore no presumption prevails in favor of the regularity of the proceedings, and the decree is not impervious to'an attack, either direct or collateral. Nor was appellee bound to make a showing of meritorious defense, as the decree was wholly void because the court on the face of the record had no jurisdiction to render it. Affirmed.