Hoover v. Hoover

Mr. Justice Wolverton,

after stating the facts, delivered the opinion of the court.

Several reasons are assigned by the defendant why the order denying the motion to set aside the amended decree and the decree itself should be reversed: (1) That the original decree was amended without notice to the defendant ; (2) that the amendment was made after the court had lost jurisdiction of the parties; and (3) that the original decree, so far as it sought to set aside the defendant’s real property for the use and benefit of the plaintiff, *459 is void. The plaintiff challenges the defendant’s right to appeal, because he suffered default to be entered against him, and therefore that he has no standing in court, except upon application to be relieved of the default.

1. With the original decree we can have nothing to do, because there is no appeal from it. Whatever might have been the power of the court to amend the decree so as to correct the description of the land after the term by substituting the figure “8” for the figure “4,” it appearing by the record that the erroneous entry in this respect was a mere misprision of the clerk, it is clear that it was without power to change or modify the entry so as to set aside the real property in fee simple for the use and benefit of the plaintiff. Under the original decree, she could claim nothing beyond a life use, but, as amended, it purports to vest her with a fee simple or absolute title. The change was very material and of vital import, and one which it was not competent for .the court to make. It seems to be an imperative rule that a decree can not be altered or amended in a material particular, after the term at which it is .given and rendered, without a rehearing, except as it may pertain to a matter which would follow, as of course, in giving full expression to the judgment pf the court, and the amendment is such as the court would have made when the decree was entered if it had been asked for. But, in either event, there must be a petition or motion, with notice, and an opportunity to be heard; otherwise, the court is without jurisdiction to award the relief : Jones v. Davenport, 45 N. J. Eq. 77 ( 17 Atl. 570 ); Dorsheimer v. Rorback, 24 N. J. Eq. 33 ; Jarmon v. Wiswall, 24 N. J. Eq. 68 : Clark v. Hall, 7 Paige, 382 ; Sprague v. Jones, 9 Paige, 395 ; Swift v. Allen, 55 Ill. 303 .

*460

2. A void order or judgment, made or entered at a time when the court is without power or jurisdiction to award it, is reviewable on appeal: Deering v. Quivey, 26 Or. 556 ( 38 Pac. 710 ); Elliott, App. Proc. § 110 ; Livermore v. Campbell, 52 Cal. 75 .

3. Ordinarily, there is no appeal from a judgment or decree given for want of an answer; relief therefrom must be sought by an application to the trial court, and from the order touching the. application an appeal will lie. Now, in analogy to this practice, the defendant applied, by motion based upon affidavit, to the trial court to be relieved from a void decree. He does not seek to distuiffi the original, but only the amended or nunc pro tunc, decree, which would affect him most vitally if valid. It was taken against him .without notice or an opportunity to be heard, and hence, as to it, the defendant can not be said to be in default in any sense, and, being void, the court was fully authorized to set it aside and declare it a nullity : Ladd v. Mason, 10 Or. 308, 311, 312 . And this court is authorized to entertain an appeal 'for the purpose of purging the record of such a decree: Trullenger v. Todd, 5 Or. 36 . The method adopted by the defendant for getting rid of the amended decree is well calculated in practice to subserve the ends of justice, as it respects all parties interested, and is in harmony with the authorities so far as they have application to this particular case; hence we are induced to give it our sanction. The defendant should be relieved from the effect of the amended decree, and the action of the trial court in awarding it will therefore be reversed, leaving the original decree to stand as it was when first entered.

Reversed.