Oregon-Wash. R. & N. Co. v. School Dist. No. 25

BURNETT, J. —

1, 2. Tbe only notice of appeal in tbe record is from the decree of September 4, 1917. Tbe defendants contend that, having perfected their appeal from that adjudication, tbe Circuit Court was ousted of any authority to set it aside and bence that its decree of November 10,1917, was a nullity and cannot be regarded for the purposes of tbe present motion. In Brewster v. Springer, 79 Or. 88 ( 154 Pac. 418 ), in an opinion by Mr. Chief Justice Moore, this court held that:

“Notwithstanding an appeal from a judgment may have been taken and perfected, jurisdiction of tbe cause is retained by tbe trial court sufficient to empower it at any time before tbe appeal is heard and determined to amend tbe bill of exceptions so as to make it conform with tbe facts.”

Reasoning by analogy to tbe rules enunciated in tbe precedents there cited, it was held that a trial court within tbe time limited therefor may set aside its own judgment and render a new one, and that it is not only within its power so to do, notwithstanding an appeal may have been taken and not beard, but it is its duty to do so, in order to save tbe expense of an appeal. That is what has been done in tbe present instance. Responding to the attack of tbe defendants upon tbe first decree, tbe court set tbe same aside and rendered another. Tbe one appealed from is no longer in existence, bence there is nothing before us for decision. Tbe decree of November 10, 1917, supersedes tbe former determination and is the final adjudication of tbe matters in dispute. It constitutes tbe only decision from which an appeal will lie, and tbe court will *10 not do the vain thing of affirming or reversing that which does not exist.

3. The revision of tbp decree appealed from has been accomplished by the authorized action of the trial court. We could not do more on the defendants’ appeal than to replace with another the decree of which they complained. That has been accomplished by the trial court in regular procedure. For aught that appears the later decision of the Circuit Court may be satisfactory to the defendants. At least we may presume so in the absence of any appeal from it. At best the appeal before us presents only an academic question which we are not called upon to decide: Moores v. Moores, 36 Or. 261 ( 59 Pac. 327 ); State ex rel. v. Grand Jury, 37 Or. 542 ( 62 Pac. 208 ); State ex rel. v. Webster, 58 Or. 376 ( 114 Pac. 932 ); Francis v. Schuman, 74 Or. 454 ( 145 Pac. 668 ); Dimick v. Latourette, 72 Or. 231 ( 143 Pac. 896 ); Stires v. Sherwood, 75 Or. 108 ( 145 Pac. 645 ); Ireland v. Sherman County, 75 Or. 241 ( 146 Pac. 969 ). The motion to dismiss the appeal must be allowed. Appeal Dismissed.