Parrott v. District Court of the Third Judicial District, within & for the County of Uinta

Beard, Ci-iiee Justice. In this case the. plaintiffs filed in this court a petition for ■a writ of prohibition to be directed to the District Court in and for Uinta county, and to Hon. David H. Craig, judge of said court, to prohibit further action in a certain case in said court wherein Frank Blanchard is plaintiff, and Joseph Parrott (plaintiff here) is defendant. The petition was presented to the Chief Justice, who issued an alternative writ and made the same returnable before the court. Service was duly acknowledged, but no answer or other plea was filed on behalf of defendants, and the case has been heard [497] on the petition, and the evidence presented by the plaintiffs. The facts, as found by the court, are, that said Blanchard filed a petition in the District Court of Uinta county on April 6, 1907, against the said Parrott for the recovery of damages for an alleged breach of contract. On May 25, 1907, the defendant therein, Parrott, filed a demurrer to the petition, which demurrer was confessed by the plaintiff September 14, 1907, and he was given ninety days from that date to file an amended petition, and defendant was given thirty days thereafter to answer. No amended petition having been filed, 'the defendant on January 11, 1908, filed a motion to dismiss the action for the failure of the plaintiff to comply with the order of September 14, 1907. An amended petition was filed February 8, 1909, without leave of court. Nothing further was done until April 14, 19'n, when the following order was entered: “On motion of attorney for defendant, it is ordered by the court that this case is dismissed for. lack of prosecution.” At the next term of the court, to-wit: September 14, 1911, the defendant filed a motion to reinstate the case on the docket, and on the same day the court entered an order reinstating the case on the docket “upon the payment by plaintiff of all costs of defendant up to the date of this order; that said amended petition be and remain on file in this cause and that said cause stand upon the docket of this court for further regular proceedings as if said amended petition had been filed in time. To which order and ruling John R. Arnold, who appears specially herein, objects and excepts. It is further ordered that said defendant be given ninety days from this date within which to answer, demur or otherwise plead to said amended ’petition.” It appears by the affidavit of Par-rott filed in this court in support of his petition for the writ, that he had no notice of the motion to reinstate the case on the docket or of the order so doing until long after September 14, 1911; that when the case was dismissed April 14, 1911, he supposed the action was ended, and that he never employed any attorney to represent him on the [498] hearing of the motion to reinstate the case on the docker and that no attorney did represent him on said hearing. An affidavit of John R. Arnold recites: “That at the September, A. D. 19'n, term of said court, to-wit: on September 14, 1911, the attorneys for said plaintiff-filed, without notice, their motion and' affidavit to reinstate said 'case, 'which motion was presented to said court on the 'date' of the filing thereof, at which time said affiant was called upon, whereupon he stated in open court 'that he considered the case finally ended and that said defendant had been so informed. The affiant further avers that said defendant offered no evidence, and any appearance, objection or exception made at the time said motion was heard was made by this affiant without reference to the defendant being by him represented, and reference is hereby made to the exact wording of the order of said court.” When the case was dismissed by the court April 14, 1911, for lack of prosecution, and'that term'of' the'court was allowed to pass without any steps being taken by the plaintiff to set' aside the order of dismissal, the case was at an end as fully and completely as though it had been tried upon the merits and a judgment rendered in favor of the defendant.' After the term at which a judgment' or order is rendered or made the court has no power to vacate or modify it, except as provided by law. The statute, Sec. 4650, Comp. Stafi 1910; states the' grounds upon which the court may vacate or modify its own judgments or orders after the'term at which the same were made.' Among those grounds is that specified in sub-division 7 of said section: “Por unavoidable casualty or misfortune,' preventing the party from prosecuting or defending.”' 'That is the only ground upon which the motion to'reinstate'the case on the docket appears to be based according to the affidavit in support of the'motion: 'Sec. 4654, Comp. Stat.-1910, prescribes the method of procedure in that case as follows: “The proceedings to 'vacate the judgment or order- on the grounds specified in sub-divisions four, five, six, seven, eight, nine [499] and ten of Sec. 4650, shall be by petition, verified by affidavit-setting forth the judgment or order, the grounds to vacate- or modify it, and if the party applying was' defendant, the-defense to the action, and on such petition a summons shall' issue and he served as in the commencement of an action.” That such is the proper procedure in a case like the one-here, see Rawlston et al. v. Wells, 49 O. St. 298, 30 N. E. 784. That method was not pursued in this case; and if we-should consider the motion as a petition it was wholly insufficient. (Hill v. Williams, 6 Kan. 17.) The motion is “Comes now the plaintiff and moves the court to reinstate-this case upon the docket for the reasons set forth in the-accompanying affidavit.” The affidavit is by one of the-attorneys for plaintiff and among other things states, “that by the neglect and inadvertence of affiant on account of his absence from the State of Wyoming, said amended petition, was not filed within said ninety days.” And it is also averred that the papers in the cáse were mislaid and lost for a period of more than two years. No effort seems to have been made to supply the loss by substituting copies or otherwise. No summons was issued, and if the objection-made and exception taken by John R. Arnold constituted an appearance, it was without authority from Parrott and did' not bind him. The court having dismissed the case at the-April, 1911, term and that term having expired without further action, the court was without authority to enter an order reinstating the case- on the docket, and thus reinvest itself with jurisdiction of the person and subject-matter of' the action. (Gray v. Ames, 220 Ill. 251, 77 N. E. 219, 5 Ann. Cas. 174.) The order dismissing the-action could be vacated only in the method provided- by statute. That method not having been pursued, the order reinstating the case on-the docket was-void. For the -reasons’stated the alternative writ-of prohibition heretofore-issued- should be; made absolute, and it is so ordered.- Alternative writ■ made■ absolute. Scott, J., and Potter,-J., concur.-