W. L. Moody Co. v. Freeman Williams , 24 Okla. 701 ( 1909 )

Plaintiff in error, W. L. Moody Co., secured on default a judgment against the defendants in error in the district court of Garvin county, Okla., on July 6, 1908. On August 19, 1908, the judge of the district court of Garvin county, at his chambers in another county, made an order, in which he found the defendant had a valid defense to the cause of action on which the judgment was rendered, and that it was due to the mistake and neglect of the clerk of the court that a certain motion prepared and left with him for filing was not filed or entered of record, and for that reason judgment by default was rendered in the cause. He therefore ordered that the same should be set aside and held for naught, and the defendant granted a new trial in the cause. It appears from this order that the matter was heard by the judge at chambers by agreement of parties. Counsel for plaintiff filed a motion in the district court of Garvin county, asking the court to vacate the order, which set aside plaintiff's judgment, which was by the court denied. Counsel for plaintiffs have attempted to bring the case to this court for review by petition in error and case-made.

Counsel for defendants has filed a motion to dismiss this appeal, for the reason that the same is not a final order, is interlocutory, and no appeal will lie therefrom. This motion must be sustained on the authority of the case of Town of Byarsv. Sprouls, an opinion of this court delivered July 13, 1909,ante, p. 299, 103 P. 1038. As has been noted, the record discloses, also, that the district judge at chambers assumed to set aside the judgment theretofore rendered in the cause. This he was without authority to do, and his action in so doing was a nullity. 23 Cyc. 550; 17 Ency. of Law, 843; Turner v.Foreman, 47 S.C. 31, 24 S.E. 989; Kime v. Fenner, 54 Neb. 476, 74 N.W. 869; Fisk v. Thorp et al., 51 Neb. 1, 70 N.W. 498. Nor can jurisdiction for such purposes be conferred by agreement of parties. In re Rex, 70 Kan. 221, 78 P. 404. The appeal is accordingly dismissed.

All the Justices concur.