Cascaden v. Dunbar , 3 Alaska 671 ( 1909 )

LYONS, District Judge.

On the twenty-fo'urth day of January, 1909, Hon. Silas H. Reid, the then presiding judge of this division of the district of Alaska, made findings of fact and conclusions of law and signed a decree in the above-entitled cause. Said findings, conclusions of law, and decree were signed on the twenty-ninth day of January, 1909, at Valdez, Alaska (then within this jurisdiction), in vacation, and were forwarded by Judge Reid to the clerk of this court at Fairbanks, and by the clerk received and filed in this cause on the 19th day of March, 1909. Thereafter, and on the 22d day of March, 1909, the defendants Manley and Rice, by their attorney, W. H. Adams, filed a motion to set aside the findings, conclusions, and decree so made and filed, and thereafter, on the 5th day of April, 1909, the plaintiff filed his motion in this cause to alter, complete, and correct said findings, conclusions, and decree.

Before passing on the merits of the respective motions, it becomes necessary to inquire as to the power of the court as now constituted to entertain said motions. The plaintiff contends that the present judge of this court, to whom these motions are addressed, not being the same judge who entered the findings and conclusions and signed the decree herein, is without power to set the same aside, but that he has power to cor-' rect the same for the. purpose of making them conform to the pleadings and proof, and also for the purpose of correcting any apparent clerical errors discoverable in said findings, conclusions, or decree.

Section 228, p. 190, Carter’s Ann. Alaska Code, provides as follows :

“Upon a trial by the court, when a decision is given in vacation, a motion for a new trial shall be filed within twenty days from the' time of filing such decision, except as hereinafter provided.”

The above section is quoted from chapter 22, governing motions for a new trial, which must apply to equitable causes, as; well as cases at law. It is therefore apparent that both motions now under consideration, under the provisions of the statute above referred to,- have been filed within the time provided by law. But the plaintiff contends that, even though the motion of defendants Manley and Rice was filed within the statutory time, yet this court as presently constituted has no power. to entertain the same, for the reason that a different judge is now presiding than the one who entered the findings and decree complained of.

“Tbe power to vacate or open a judgment, or to set it aside, is a common-law power possessed by the court as a part of its necessary-machinery for the administration of justice, and hence might be exercised without the grant of special statutory authority.” 1 Blade on Judgments, § 297.

It is conceded that, if the findings and decree in this cause are void, the court as at present constituted has the power to set the same aside; but plaintiff contends that the record does not disclose the fact that the judgment is void.

“Where the judge of the .superior court who directed, the judgment retired from office, and his successor occupied’the office at the time when the motion to vacate the judgment was miade, the action of the superior court is that of the judge of the court, and a change in the persons who occupied the position does not affect the consideration of the vacation of the judgment.” State ex rel. Rucker v. Superior Court, 18 Wash. 227, 51 Pac. 366

If the entire record upon which the former judge of this court based his findings of fact, conclusions of law, and decree were not before this court at the present time, the court as presently constituted would probably not have the power to review the findings of the former judge; but, since the entire record has been transcribed and is before the court at the present time, there appears to be no reason in law, and certainly none in justice, why the court as at present constituted should not have the power, equal in that regard with that cA the judge who rendered the decree, to consider the motions now before this court. But, even though the court as at present constituted has not equal power with reference to the disposition of such motions with that of Judge Reid, were he still the presiding judge of this court, that question becomes immaterial under the view entertained by this court of the decree herein, because it is apparent to the court that said decree is supported neither by the pleadings nor the proof, and for that reason is void, as to the defendants Manley and Rice; and it is equally apparent that the direction in the conclusions of law that “the plaintiff, Cascaden, is entitled to the $51,675.36, less all charges, if any, due the clerk of court,” is void, because not supported either by the pleadings or proofs. The objections to this court as presently constituted hearing the motion of the defendants are, therefore, not well taken; for, as this court views the situation, it is his duty to hear and at this time determine both motions.