Miller v. Prout

BUDGE, J.

A motion has been made to dismiss this appeal on the ground that it was not taken in time. Judgment was entered July 17, 1917, decreeing certain priorities to respondent as against all of the defendants, and certain *730 priorities to the defendants FaulP as against the remaining defendants, among them being these appellants. On April 15, 1918, on motion of appellants ''and other defendants, the court made an order purporting to vacate a portion of the original judgment by eliminating the priorities decreed to the defendants Faull, and leaving it in other respects in full force and effect. The motion pursuant to which the foregoing order was made was based upon the ground that the portion of the judgment in favor of the Faulls had been taken against the moving parties through their mistake, inadvertence,, surprise or excusable neglect, and was supported by affidavits to the effect that an agreement had been entered into between all of the codefendants that they would litigate in the action the priorities only as between the various defendants on the one hand and the respondent on the other. The notice of appeal was filed July 9, 1918. The only point involved is whether the time -within which appellants must appeal begins to run from the date of the rendition of the original judgment on July 17, 1917, or the date of the modification thereof on April 15, 1918.

C. S., sec. 6726, provides among other things that the court may relieve a party from a judgment taken against him through his mistake, inadvertence, surprise or excusable neglect, providing the application be made within a reasonable time, not exceeding six months after the adjournment of the term.

While the remedy provided by this section differs in many respects from that provided by a motion for a new trial, there is a sufficient analogy between the two proceedings to warrant the citation of authorities upon one point, viz., an appeal from a judgment does not divest the jurisdiction of the trial court to pass upon or to grant a motion for a new trial, which operates to vacate the judgment. (1 Hayne, New Trial and Appeal, rev. ed., 15, sec. 2; Naglee v. Spencer, 60 Cal. 10 ; Rayner v. Jones, 90 Cal. 78 , 27 Pac. 24 ; Knowles v. Thomp son, 133 Cal. 245 , 65 Pac. 468 .) We see no reason why a similar construction should not be given to sec. 6726, supra. The trial court is given authority thereunder to proceed in *731 the manner therein defined and to grant the relief therein authorized, if the application is made within a reasonable time, not exceeding six months after the adjournment of the term in which the judgment is entered.

The proceeding under this statute is an independent proceeding and exists concurrently with the right of appeal from the judgment. Any order made pursuant to such a proceeding does not operate to extend the time for appeal from the judgment. The proper course is to appeal from the judgment if it is desired to have the judgment reviewed and to apply to the trial court for relief under this section, notwithstanding such appeal. (Patterson v. Hochster, 21 App. Div. 432 , 47 N. Y. Supp. 553 .)

If the trial court refuses to give him the relief, he may appeal from that order as one made after judgment, and he will have preserved a record upon which the question involved can intelligently be presented to this court. If, on the other hand, the trial court grants his motion, he is not aggrieved by that order and cannot appeal from it. (Schulze v. Oregon-Washington R. & N. Co., 41 Wash. 614 , 84 Pac. 587 ; Chenoweth v. Chenoweth (Ind. App.), 114 N. E. 988 .)

This appeal not having been perfected within ninety days from the entry of the original judgment, conferred no jurisdiction upon this court. The appeal is dismissed. Costs are awarded to respondent.

Morgan, C, J., and Rice, J., concur.