Straub v. Lyman Land & Investment Co.

SMITH, J. The original opinion in this case will be found in 30 S. D. 310, 138 N. W. 957, and on rehearing in 31 S. D. 571, 141 N. W. 979, where the facts are fully stated. This court having held the service of the summons valid and affirmed the judgment on default, appellant on May 31, 1913, made application to this court for an order to show cause w'hy the default in circuit court should not be vacated and leave granted defendant to answer and defend in the action, which order was returnable on June 17, 1913. We have considered this application with some care, in view of the somewhat unusual conditions involved, but have been compelled to the conclusion that this court is without jurisdiction to grant the relief sought. A vacation of the default judgment is not sought on the appeal which gave this court jurisdiction of the action but would necessarily involve an exercise of original jurisdiction. This court has never acquired jurisdiction of the action except as to the exercise of its appellate powers. We find no statute permitting this court to vacate a default judgment except upon appeal, in a proper case, from an order of the trial court under the provisions of section 151, Code Civ. Proc. In Gelston v. Hoyt, 13 Johns, (N. Y.) 561, the court says: “The very theory and constitution of a court of appellate jurisdiction only is the correction of errors which a court below may have committed; and a court below cannot be said to have committed an error when their judgment was never called into exercise. * * * The remedy of a party in such case is to apply to the court to have the default opened or to have the order or judgment set aside, and he can thus obtain all the relief he ought to have.” The distinction is suggested in 1 Black on Judgments, § 297: “The power to vacate judgments is an entirely different matter from the power to reverse judgments. It is a power inherent in and to be exercised by the court which rendered the judgment, and -to that court and no other the .application to set aside the judgment should be made. It is a common-law power, possessed by the court as a part of its necessary machinery for [216] ■the administration of justice, and hence might be exercised without the grant of special statutory authority.” The principle was recognized and applied by this court in Garlock v. Calkins, 14 S. D. 90; 84 N. W. 393, affirmed on rehearing 15 S. D. 459, 90 N. W. 136. In Wolfley v. Hughes, 8 Ariz. 203, 71 Pac. 951, it was held that, when a party is given the right to apply to the court of original jurisdiction for relief, he cannot invoke the powers of an appellate tribunal for that purpose. We are constrained to deny the relief sought for want of jurisdiction in this court, and to discharge the order to show cause. GATES, J., took no part in this decision.