WILLIAMS, C. J.
(after stating the facts as above). The only question to be determined is whether or not the probate court of Beaver county, at its May term in 1906, erred in sustaining the motion of the defendant in error to set aside the order, made and entered at the January term, A. D. 1906, of said court granting a new trial.
In the ease of
Hemme v. School District Number 4,
30 Kan. 377, 1 Pac. 104, Mr. Justice Yalentine, speaking for the Supreme Court of the state of Kansas, said:
“It will be remembered that the original motion for the new trial was filed at the term at which the original trial was had and the original judgment rendered, and the motion was made upon grounds authorized by the statute. Civ. Code, § 306, subd. 3; section 568, subd. 7. It is claimed, however, by the plaintiff othat the motion was not filed within the proper time. Now it is true that the motion was not filed within three days after the decision of the court; but still the defendant attempted to. show, and the court evidently found the showing sufficient, that the defendant was unavoidably prevented from making an appearance on the day of trial and defending the action, or from filing its motion for a new trial at an earlier date than it did file the same. We think this is sufficient. Civ. Code, § 308. The motion would have also been sufficient under subdivision 7, § 563 of the Civil Code, if it had been put in the form of a petition; but, as it was made at the same term of the court, and so soon after the trial, and as the plaintiff had as ample opportunity to defend against the facts set up in the motion and set up in the defendant’s affidavits as he would have had if the facts had been
set forth in a petition, probably the fact that the application was in the form of a motion, and not in the form of a petition, is not very material. Upon the whole, we think the ruling of the district court upon the motion should be sustained.
It must be remembered that a trial court, for the purpose of administering justice, has a very wide and extended discretion in setting aside or modifying proceedings had in its own court, if it does so at the same term at which such proceedings were had.
In the present case we cannot say that the district court abused its discretion, or erred so materially as to require a reversal of its order granting a new trial.”
In the case of
Alliance Trust Co. v. Barrett et al.,
6 Kan. App. 689, 50 Pac. 465, Mr. Justice Schoonover, speaking for the Court of Appeals of Kansas, said:
“‘A
trial court has a very wide and extended discretion in setting aside and modifying proceedings had in its own court if it does so at the same term at which the proceedings were had’
(Hemme v. School District,
30 Kan. 337, 1 Pae. 104), but after final judgment has been rendered, and the term expires, there must be a substantial compliance with the statute to give the court further jurisdiction. * * *”
Under the foregoing the- probate court of Beaver county unquestionably had the power to set aside, at the same term, the judgment rendered at its January term, 1906. The journal entry setting aside such judgment recites:
“* *
* The plaintiff appearing not, either in person or by attorney, though counsel for said plaintiff had been notified thereof, the court, after hearing the argument of counsel, and being fully advised in the premises, does find that the court erred in rendering judgment therein in favor of .the plaintiff and against defendant, in this, to wit: That plaintiff was permitted to amend his petition, without notice to the defendant, on the 5th day of January, A. D. 1906, and to take judgment thereon by default, and without notice to the said defendant on the same day, that the rights of the said defendant were materially prejudiced thereby, and that he is entitled, for the reasons stated, to a new trial.”
In said motion to set aside said order granting a new trial,
filed at the May term of said court, it nowhere alleges that said recital in the journal entry that the counsel for the plaintiff had been notified thereof was not true, but states that no “due and proper notice” was served on the defendant within the time prescribed by law, giving him an opportunity to argue or reply to said motion. The presumption is that said recital is true, especially in-that said plaintiff fails to allege, in his motion to vacate, that the same is not true. Plaintiff had the right to appeal from said order granting a new trial, but he failed to do so, and, thereafter, said case being set for trial at the regular March term, 1906, was from time to time continued, by agreement of both plaintiff and defendant. The plaintiff failing to appeal from the order granting a new trial, after the expiration of the term at which final judgment was rendered, there must be a substantial compliance with the statute to give the court further jurisdiction to modify, vacate, or set aside any judgment rendered at a preceding term.
Section 4497, Wilson’s Rev. & Ann. St. 1903 (section 299, Civ. Code), provides that:
“Where the grounds for a new trial could not, with reasonable diligence, have been discovered before, but are discovered after the term at which the verdict, report of referee or decision was rendered or made, the application may he made by petition, filed as in other cases, not later than the second term after discovery; on which a summons shall issue, be returnable and served, cr publication made as prescribed in section eighty. . The facts stated in the petition shall be considered as denied without answer, and if the service shall be complete in vacation, the case shall be heard and summarily decided- at the ensuing term, and if in term, it shall be heard and decided after the expiration of twenty dajrs from such service. The case shall be placed on the trial docket and the witnesses shall be examined in open court, or their depositions taken as in other cases; but no such petition shall be filed more than one year after the final judgment was rendered.”
This section has no application to the case at bar.
Section 4760, Wilson’s Rey. & Ann. St. 1903 (section 562, Civ. Code), provides that:
“The district court shall have power to vacate or modify its own judgments or orders, at or after the term at which such judgment' or order was made: First, by granting a new trial for the cause, within the time and in the manner prescribed in section two hundred and ninety-nine
(supra).
Second, by a new trial granted in proceedings against defendants constructively summoned, as provided in section seventy-eight. Third, for mistake, neglect or omission of the clerk, or irregularity in obtaining a judgment or order. Fourth, for fraud, practiced by the successful party in -obtaining the judgment or order. Fifth, for erroneous proceedings against an infant, or a person of unsound mind, where the condition of such defendant does not appear in the record, nor the error in the proceedings. Sixth, for the death of one of the parties before the judgment in the action. Seventh, for unavoidable casualty or misfortune, preventing the party from prosecuting or defending.
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WILLIAMS, C. J.
(after stating the facts as above). The only question to be determined is whether or not the probate court of Beaver county, at its May term in 1906, erred in sustaining the motion of the defendant in error to set aside the order, made and entered at the January term, A. D. 1906, of said court granting a new trial.
In the ease of
Hemme v. School District Number 4,
30 Kan. 377, 1 Pac. 104, Mr. Justice Yalentine, speaking for the Supreme Court of the state of Kansas, said:
“It will be remembered that the original motion for the new trial was filed at the term at which the original trial was had and the original judgment rendered, and the motion was made upon grounds authorized by the statute. Civ. Code, § 306, subd. 3; section 568, subd. 7. It is claimed, however, by the plaintiff othat the motion was not filed within the proper time. Now it is true that the motion was not filed within three days after the decision of the court; but still the defendant attempted to. show, and the court evidently found the showing sufficient, that the defendant was unavoidably prevented from making an appearance on the day of trial and defending the action, or from filing its motion for a new trial at an earlier date than it did file the same. We think this is sufficient. Civ. Code, § 308. The motion would have also been sufficient under subdivision 7, § 563 of the Civil Code, if it had been put in the form of a petition; but, as it was made at the same term of the court, and so soon after the trial, and as the plaintiff had as ample opportunity to defend against the facts set up in the motion and set up in the defendant’s affidavits as he would have had if the facts had been
set forth in a petition, probably the fact that the application was in the form of a motion, and not in the form of a petition, is not very material. Upon the whole, we think the ruling of the district court upon the motion should be sustained.
It must be remembered that a trial court, for the purpose of administering justice, has a very wide and extended discretion in setting aside or modifying proceedings had in its own court, if it does so at the same term at which such proceedings were had.
In the present case we cannot say that the district court abused its discretion, or erred so materially as to require a reversal of its order granting a new trial.”
In the case of
Alliance Trust Co. v. Barrett et al.,
6 Kan. App. 689, 50 Pac. 465, Mr. Justice Schoonover, speaking for the Court of Appeals of Kansas, said:
“‘A
trial court has a very wide and extended discretion in setting aside and modifying proceedings had in its own court if it does so at the same term at which the proceedings were had’
(Hemme v. School District,
30 Kan. 337, 1 Pae. 104), but after final judgment has been rendered, and the term expires, there must be a substantial compliance with the statute to give the court further jurisdiction. * * *”
Under the foregoing the- probate court of Beaver county unquestionably had the power to set aside, at the same term, the judgment rendered at its January term, 1906. The journal entry setting aside such judgment recites:
“* *
* The plaintiff appearing not, either in person or by attorney, though counsel for said plaintiff had been notified thereof, the court, after hearing the argument of counsel, and being fully advised in the premises, does find that the court erred in rendering judgment therein in favor of .the plaintiff and against defendant, in this, to wit: That plaintiff was permitted to amend his petition, without notice to the defendant, on the 5th day of January, A. D. 1906, and to take judgment thereon by default, and without notice to the said defendant on the same day, that the rights of the said defendant were materially prejudiced thereby, and that he is entitled, for the reasons stated, to a new trial.”
In said motion to set aside said order granting a new trial,
filed at the May term of said court, it nowhere alleges that said recital in the journal entry that the counsel for the plaintiff had been notified thereof was not true, but states that no “due and proper notice” was served on the defendant within the time prescribed by law, giving him an opportunity to argue or reply to said motion. The presumption is that said recital is true, especially in-that said plaintiff fails to allege, in his motion to vacate, that the same is not true. Plaintiff had the right to appeal from said order granting a new trial, but he failed to do so, and, thereafter, said case being set for trial at the regular March term, 1906, was from time to time continued, by agreement of both plaintiff and defendant. The plaintiff failing to appeal from the order granting a new trial, after the expiration of the term at which final judgment was rendered, there must be a substantial compliance with the statute to give the court further jurisdiction to modify, vacate, or set aside any judgment rendered at a preceding term.
Section 4497, Wilson’s Rev. & Ann. St. 1903 (section 299, Civ. Code), provides that:
“Where the grounds for a new trial could not, with reasonable diligence, have been discovered before, but are discovered after the term at which the verdict, report of referee or decision was rendered or made, the application may he made by petition, filed as in other cases, not later than the second term after discovery; on which a summons shall issue, be returnable and served, cr publication made as prescribed in section eighty. . The facts stated in the petition shall be considered as denied without answer, and if the service shall be complete in vacation, the case shall be heard and summarily decided- at the ensuing term, and if in term, it shall be heard and decided after the expiration of twenty dajrs from such service. The case shall be placed on the trial docket and the witnesses shall be examined in open court, or their depositions taken as in other cases; but no such petition shall be filed more than one year after the final judgment was rendered.”
This section has no application to the case at bar.
Section 4760, Wilson’s Rey. & Ann. St. 1903 (section 562, Civ. Code), provides that:
“The district court shall have power to vacate or modify its own judgments or orders, at or after the term at which such judgment' or order was made: First, by granting a new trial for the cause, within the time and in the manner prescribed in section two hundred and ninety-nine
(supra).
Second, by a new trial granted in proceedings against defendants constructively summoned, as provided in section seventy-eight. Third, for mistake, neglect or omission of the clerk, or irregularity in obtaining a judgment or order. Fourth, for fraud, practiced by the successful party in -obtaining the judgment or order. Fifth, for erroneous proceedings against an infant, or a person of unsound mind, where the condition of such defendant does not appear in the record, nor the error in the proceedings. Sixth, for the death of one of the parties before the judgment in the action. Seventh, for unavoidable casualty or misfortune, preventing the party from prosecuting or defending. Eighth, for errors in a judgment, shown by an infant in. twelve months after arriving at full age, as prescribed in section four hundred and four. Ninth, for taking judgments upon warrants of attorneys for more than was due to the plaintiff, when the defendant was not summoned or * otherwise legally notified of the time and place of taking such judgment.”
Plaintiff does not come within any of these provisions. The court below having the power, within a reasonable discretion, to grant a new trial, subject to the right of the plaintiff to appeal therefrom and to have the action of the trial court thereon reviewed, it is not necessary for us to determine whether or not the trial court properly granted said new trial, because it was not brought before us for review. Orders granting new trials should never be disturbed by appellate courts, except where the lower court has abused his discretion in granting the same. The trial courts, after judgments or decrees or orders have once become final, and the term at which the same was rendered or entered has expired, should be very slow to vacate such judgments, decrees, or orders, especially when the party seeking such action has failed to avail himself of the right to have such action
reviewed by the appellate court. Such judgments, decrees, or orders should never be vacated, except 'where the party seeking such vacation has complied substantially with the provisions of the law provided for the same.
The judgment of the lower court is reversed and remanded, with instructions to proceed in accordance with this opinion.
All the Justices concur.