Blanchard v. Makinster

1 P.2d 583, 290 P. 1098, 137 Or. 58, 1931 Ore. LEXIS 148

Opinions

COSHOW, C. J.

This cause is here on a motion for an order requiring the clerk of Tillamook county to certify to this court certain documents employed by defendants and appellants in support of a motion to vacate the judgment from which defendant appeals.

The motion to set aside and vacate said judgment is not based on a claim that the judgment was rendered without jurisdiction. Appellants’ claim is that the court rendered said judgment under a mistake of fact. It is alleged in the affidavits supporting said motion for said order that all of the parties, including the judge who presided at the trial, labored under the same mistake.

The judgment was rendered in the. circuit court on the 7th day of June, 1929. The notice of appeal was duly and timely given. The motion to vacate the judgment was filed the latter part of October, 1929. The judgment of the circuit court was rendered at the May term, 1929, thereof. The next term of said circuit court began the first Monday in October, 1929. The appeal was perfected and the transcript filed in this court before the motion to vacate the judgment was presented to the circuit court.

The circuit court had, therefore, lost all power to correct or to set aside or vacate said judgment, except upon the ground of jurisdiction: Deering v. Quivey, 26 Or. 556, 559 (38 P. 710); State v. Ryan, 114 Or. 91, 97 (234 P. 811); Lahey v. Lahey, 109 Or. 146, 149 (219 P. 807). Since the jurisdiction of the court or its authority to enter the judgment is not questioned, defendant is not entitled to the order for which he petitions. Conceding that the judgment is the result of a mistake of fact, that mistake can not be remedied in the manner. defendant has pursued. The circuit court did not err by denying the motion to vacate the judgment, for it was without authority to allow said motion.

The motion will be denied.

McBride, J., absent. James W. Mott, of Salem, for appellants. George P. Wmslow, of Tillamook (Botts & "Winslow, of Tillamook, on the brief), for respondents.