Servatius v. Pickel

Dixon, C. J. The change made by the court in the order, striking out the word “ Dodge” and inserting in place thereof the word “Winnebago,” was equivalent to a vacation of the order changing the place of trial to Dodge county, and the making of a new order directing the cause to be sent to Winnebago county for that purpose, and the question thus presented is, whether the court had the power 'at the same term and before transmission, but whilst the cause remained in it, thus to vacate an order respecting the place of trial, and to make a new order in its stead ? We are clearly of opinion that the court had such power. The decisions of this court cited by counsel for the appellant, do not touch the question, but were made in cases differing entirely in their character. The question here is as to the power of the court to vacate, modify or set aside an order at the same term at which it was made, and not a question as to the effect of an order made at a previous term as res adjudicate and conclusive, when the same motion is renewed, or attempted to be, without leave reserved at a subsequent term, nor one which relates to the power of the court to vacate or set aside judgments after the term at which they were rendered. The cases in this court in which the power has been denied, were all of the latter kinds. Such was the case of Kabe v. The vessel “Eagle,” 25 Wis., 108, though the facts may not distinctly [509] appear from the report. Such too was Moll v. Benckler, 28 Wis., and Branger v. Buttrick, 28 Wis., and all the rest. The same rule has been applied where the application was to vacate a judgment rendered at a previous term. Edwards v. The City of Janesville, 14 Wis., 26; Spafford v. The City of Janesville, 15 Wis., 474. But with regard to applications and motions coming up during the same term, the power of the court to set aside, modify or change its orders and judgments has never been denied. On the contrary, both in this respect as well as the other, this court has adhered strictly to the common law rules, as will be seen from the case of The Ætna Life Insurance Co. v. McCormick, 20 Wis., 268, 269, where the power of the court to review and reverse or vacate its orders and judgments at the same term, was distinctly recognized. The practice is very ancient and familiar. Blaokstone says: “Formerly, the suitors were much perplexed by writs of error brought upon very slight and trivial grounds, as mis-spellings and other mistakes of the clerks, all which might be amended at the common law, while all the proceedings were in paper; for they were then considered as only in fieri, and therefore subject to the control of the courts. But when once the record was made up, it was formerly held, that by the common law no amendment could be permitted, unless within the very term in which the judicial act so recorded was done; far during the term the record is in the hr east of the court: but afterwards it admitted of no alteration. But now courts are become more liberal; and, where justice requires it, will allow of amendments at any time while the suit is depending, notwithstanding the record is made up and the term be past. For they at present consider the proceedings as in fieri, till judgment is given; and therefore that, till then, they have power to permit amendments by the common law; but when the judgment is once given and enrolled, no amendment is permitted in any subsequent term.” 3 Com., 407. It thus appears, that within the term, courts could always modify or change [510] their orders and judgments. See also 1 Tidd’s Prac., 696; 2 id., 1136; and 2 Archbold’s Prac., 832. In this case, therefore, the circuit court of Fond dn Lac county, in which the action was pending, had the power to change the order directing the trial to be had in Dodge county, and to substitute Winnebago county in its place, unless there be something in the order for a change of Tenue distinguishing it from all other orders. It is said that the court having once made an order thereupon, lost all jurisdiction over the cause, although the same had not been removed, except that it might perhaps aid in the removal which had thus been directed. The same sophistical and unsound course of reasoning would deprive the courts of a large part of their power to correct mistakes and remedy errors which may have intervened to the detriment of law and justice, and to the great injury of suitors. An action once dismissed could never be re-instated, and so of an appeal, which could never be restored; because, in either case, there would be no action or appeal pending when the application to re-instate or restore was made. The order changing the venue could not be interfered with or disturbed, notwithstanding the action was still present in the court, and notwithstanding the circuit court of Dodge county had acquired no actual jurisdiction. Such is the argument. A satisfactory answer seems to be, that the action yet remaining in the court, so that jurisdiction, in fact, was not parted with, the court possessed the same power and authority over that order as over any other of its own making under like circumstances. Pending the dismissal of an action on an appeal, it may, in some sense, be true, that the court is without jurisdiction of the action or appeal, and yet the order of dismissal still remains in the court subject to its powers of revision and correction whenever a proper case is presented. Within the rules prescribed by law, the oourt may operate upon and change its own order. It may revoke or annul it, and in that way jurisdiction of the action or appeal may be restored. The [511] creature is not greater tban the creator. The power which mates may, under proper circumstances, unmake or set aside the order. During the term and before removal of the cause, the order, therefore, was subject to revision and vacation by the court which made it, and when vacated, jurisdiction was fully restored, so that it became competent for the court to give any further direction or to make any new order respecting the place of trial, which, under the circumstances, was deemed most convenient and proper. By the Court. — Order Affirmed.