Turner v. Nachtsheim

LyoN, J. 1. It is claimed on behalf of defendant that the first order, which denied the motion to refer the cause, is res adjudicata of the question, and that the court had no power to make the second order, from which this appeal is taken. Had the court referred the cause without vacating the first order, the objection would be well taken, because that order is absolute in its terms. This court has frequently so held. But it was entirely competent for the court to vacate that order at any time during the term at which it was made, and when that tvas done it ceased to be an impediment to a reference of the cause. That the court had power to vacate such order at that term is unquestionable; for this court has often asserted the general rule that the court has entire control over its own orders and judgments, and may modify or vacate them at any time during the term at which they were made or rendered. 2. If the plaintiffs’ bill of particulars annexed to the complaint is a “long account,” within the meaning of sec. 2864, E. S., the cause was properly referred. We think it does contain a “ long account.” There are some twenty charges for different kinds of service, rendered at different times during a period of several months. It is claimed that they were all rendered in the same action. Were this true, it is 18 hot perceived that the fact has any significance;' but it is not true. As to several of the items, it does not appear in what action the services were rendered. The defendant could have avoided the reference by admitting the correctness of the account; thus narrowing the issue to the question of his liability. Failing to do this, he must submit to the reference. By the Court.— Order affirmed.