Finley v. Finley , 65 Nev. 113 ( 1948 )

1. We heretofore affirmed the order appealed from (65 Nev. 113,189 P.2d 334) and, without opinion, denied appellant's motion for rehearing. Appellant has filed a second or further petition for rehearing. Such petition we decline to entertain. Trench v. Strong, 4 Nev. 87; Brandon v. West, 29 Nev. 135, 141,85 P. 449; Ward v. Pittsburg Silver Peak Gold Min. Co., 39 Nev. 80,148 P. 345, 153 P. 434, 154 P. 74.

However, counsel for appellant purports to feel that the bench and bar of this state will read our original opinion as overruling Sweeney v. Sweeney, 42 Nev. 431, 179 P. 638, as effecting a change in the law of this state, as negativing the advice given by attorneys "to thousands of litigants that in the light of Sweeney v. Sweeney, a decree fixing the amount of alimony is a permanent decree, unless the court expressly retained jurisdiction by the terms of its decree (but that) under the decision in the instant case it is believed that that is no longer the law (and that) it can be anticipated that there will be a deluge of motions to modify alimony in this state, which will overwhelm the district courts and which will occupy the time of those courts, not for months, but probably for several years before all of these motions can be heard and disposed of." It is also asserted that it is important that the bench and bar should understand that Sweeney v. Sweeney has been overruled so that clients may be properly advised in the future.

And so, not in entertaining the further petition for rehearing, but to elucidate our former opinion (if it indeed needs elucidation) and to stem the threatened flood and above all to quiet the consciences of attorneys who have advised "thousands of litigants" that the law in this state is as enunciated in Sweeney v. Sweeney, we have deemed it proper to file this further opinion.

We agree with the holding in Sweeney v. Sweeney [42 Nev. 431,179 P. 639]. We agree with the statement therein: "A decree a vinculo is final, and the jurisdiction of the court over the parties is after the expiration of the term at an end." And again with the statement: "Undoubtedly the rule is that a judgment cannot be set aside, altered or amended after the termof court at which it was rendered." (It is unnecessary for the purposes of this opinion to mention exceptions.) We should not be inclined to agree, however, nor would Mr. Justice SANDERS have written the sentences with the omission of the words which we have italicized. The abolishing of the terms of court and the establishing of rule XLV have heretofore been discussed.

In the Sweeney case the motion to modify, alter and amend the decree was noticed nearly three years after the entry of the judgment. In State v. First Nat. Bank, 4 Nev. 358, cited by Mr. Justice SANDERS in the Sweeney case, the court said: "During the term at which a judgment is rendered, perhaps the court may, even without a statement or affidavits, upon motion of the party injured, amend or set aside a judgment which is erroneous on it's face, or not founded on a complaint showing a cause of action." The court, through BEATTY, C.J., then proceeds to show that the court thereafter lost jurisdiction because certain supporting papers, required by the statute then in force, were not filed during the term of court, and referred to Killip v. Empire Mining Co., 2 Nev. 34. Johnson, J., dissented, and remarked that the rule laid in that case had never received his full approval. Judge BEATTY also wrote the opinion in the Killip case, and held that, although the court sitting in equity might in a proper case set aside the judgment, the lower court that rendered it lost jurisdiction when the termof court expired.

In Daniels v. Daniels, 12 Nev. 118, also cited in the Sweeney case, the proceedings to vacate the judgment were likewise initiated after the expiration of the term. The court said: "If any proceedings were commenced before the termination of the prior term which continued the jurisdiction of the court overthe case, then the record, by proper motion in this court, should have been corrected so as to show such fact. * * * we must presume * * * that * * * the judgment (was) set aside and vacated at the subsequent June term, when no proper steps had been taken during the December term to continue jurisdiction of the courtover the case. * * * It is well settled, upon the soundest policy, that after the adjournment of a term a court loses all control over its decrees and judgments rendered at such term,unless its jurisdiction is saved by some proper proceedinginstituted within the time allowed by law."

In Lang Syne Gold Min. Co. v. Ross, 20 Nev. 127, 136,18 P. 358, 19 Am. St. Rep. 337, also cited in the Sweeney case, a suit in equity to set aside the judgment on the ground of fraud was held to be proper because the remedy by motion in the main cause was not available for the reason that the term of thedistrict court at which the judgment was rendered had expired.

In State ex rel. Jones v. Second Judicial Dist. Court, 59 Nev. 460, P.2d 1096, 98 P.2d 342, the motion to vacate was noticed almost two years after the decree. In Lauer v. District Court,62 Nev. 78, 140 P.2d 953, the motion to vacate the decree (upon the ground of extrinsic fraud) was noticed almost 3 1/2 years after the entry of the decree. In Lindsay v. Lindsay, 52 Nev. 26,280 P. 95, 67 A.L.R. 824, the motion was noticed almost 3 years after the decree. In Crowell v. District Court, 54 Nev. 400,19 P.2d 635, the motion was noticed almost 2 years after the decree. Our rather profuse use of italics appeared necessary under the circumstances.

2. As recited in the court's original opinion, 65 Nev. 113 (180 P.2d 334) there were three decrees in this case. Decree No. 1 was entered August 1, 1946, and "approved" a written agreement of the parties which included provisions for alimony payments but did not in terms order any specific payments to be made. This decree was entered at the instance of appellant. Decree No. 2, designated "amended decree of divorce" (which the court attempted to enter nunc pro tunc as of August 1, 1946), was made January 6, 1947, and added specific provisions ordering the defendant husband to make the alimony payments described in the "approved" agreement. This decree was likewise entered at the instance of appellant. Respondent did not oppose either decree. Decree No. 3, designated "modified decree of divorce," was made April 4, 1947, pursuant to notice given March 26, 1947, and fixed the alimony payments (which theretofore had been established as varying from a minimum of $450 per month to a maximum of $1,350 per month, depending upon the defendant's income) at $450 a month upon the showing made on the hearing of respondent's motion. The amendment contained in decree No. 2 was duly noticed within six months of decree No. 1, and heard and entered on stipulation of the parties. The modification of decree No. 2 by the "modified decree" No. 3 was likewise noticed within six months of decree No. 2 — both within the limitations of rule XLV.

Appellant insists that rule XLV is simply a limitation and of itself creates no rights. This may indeed be so. Yet the six months' limitation to notice a motion to modify a judgment as fixed by rule XLV assumes the well-recognized converse that the court possesses the inherent power of controlling its own judgment and of vacating, amending or correcting the same, in a proper case, within the limitation — formerly during the term in which rendered. 31 Am.Jur. 272, Judgments, sec. 727; 17 Am.Jur. 360, Divorce and Separation, sec. 431. In Bronson v. Schulten,104 U.S. 410, 26 L. Ed. 797, 799, Miller, J., speaking for the United States Supreme Court, and with all of the justices concurring, said: "It is a general rule of law, that all the judgments, decrees or other orders of the courts, however conclusive in their character, are under the control of the court which pronounces them during the Term at which they are rendered or entered of record, and may then be set aside, vacated, modified or annulled by that court."

Appellant denounces this entire situation as purporting to vest in the district court a "continuing jurisdiction." Indeed, she insists that decree No. 2, the "amended decree," could not have properly been entered unless entered nunc pro tunc and seems to feel that Sweeney v. Sweeney and the cases cited in the Sweeney opinion substantiate that conclusion. With this view we are unable to agree.

EATHER, C.J., BADT, J., and WINES, District Judge, concur.