In Re Estate of Brizzolari , 129 Or. 307 ( 1928 )

IN BANC.

AFFIRMED. REHEARING DENIED.

The widow of Jerome L. Brizzolari appeals from an order vacating an order setting aside to her certain real properties of the estate of her deceased husband. On December 31, 1926, Jerome L. Brizzolari died testate at Portland, Oregon, leaving a small tract of land one hundred feet in length and seventy-five feet in width in the City of Portland, which, up to the time of his death, he had occupied as his home and which under Section 221, Or. L. et seq., constituted a homestead. On July 30, 1927, on petition of his widow duly filed in the department of probate of the Circuit Court for Multnomah County the Honorable ROBERT G. MORROW, the then presiding judge of said Circuit Court, made an order setting aside said tract of land as the separate property of the widow. The department of probate is one of the departments of the Circuit Court for Multnomah County and the Honorable GEORGE TAZWELL is the circuit judge who sits in said department pursuant to the directions of Section 3133, Or. L. At the time the order was made he was temporarily absent from the city. Upon his return and his attention being called to the matter, on October 29, 1927, he made an order vacating and setting aside the order previously made by Judge MORROW. From this last-mentioned order the widow has appealed, contending that both Judge MORROW and Judge TAZWELL had equal authority and jurisdiction over the subject matter of the petition and that, therefore, Judge TAZWELL had no power or authority to make an order setting aside the former order and also contending that the making of such order was authorized by law.

Respondent contends that under the doctrine announced in Leet v. Barr, 104 Or. 32 (202 P. 414, 206 P. 548), no court had at the time the order was made any authority or jurisdiction to make an order setting apart to the widow a homestead in a case where the owner had died subsequent to the enactment of Chapter 112, Laws of 1919, and, therefore, that the order made by Judge MORROW was null and void and of no effect and, being a mere nullity, it could be set aside by the judge making it or by any other judge of that court either on his own motion or otherwise.

There was no contention made that, in the absence of the judge who sits in the department of probate, the other circuit judges of Multnomah County are not authorized to transact the business of that department and we shall assume that there is no such lack of power or authority upon the part of the other circuit judges of that county under such circumstances.

The appellant contends that, where an order is made in a suit or proceeding within the jurisdiction of the court making it and in the exercise of his judicial discretion, another judge of the same court or one having equal or co-ordinate jurisdiction or authority is wholly unauthorized on the same record to vacate or set aside the order because of his opinion that the order was mistakenly or improvidently made, and says that the observance of this rule is essential to the prevention of unseemly conflicts between judges having equal authority upon questions of law which would arise if the decision of one judge be open to review by another judge of the same court in the same case. She cites in support thereof the following cases: Cole Silver Min. Co. v.Virginia Gold Hill Water Co., 6 Fed. Cas. 72, No. 2990;Appleton v. Smith, 1 Fed. Cas. 1075, No. 498; PlattnerImplement Co. v. International Harvester Co., 133 Fed. 376 (66 C.C.A. 438); Hardy v. North Butte Mining Co.,22 F.2d 62. The rule contended for is undoubtedly the rule followed in the federal courts. We think it has no application in this case. We do not see any reason why a Circuit Court should not correct any of its errors up to the time of the entry of final judgment in the cause. In this court the court may correct its former opinion on rehearing and make its decision conform to law. The same rule ought to be applicable in the Circuit Courts: SeePortland Trust Co. v. Coulter, 23 Or. 131 (31 P. 282). Mr. Freeman says it is a universally recognized rule that a judgment which is absolutely void may be vacated by the court in which it was rendered: 1 Freeman on Judgments (5 ed.), § 226. In White v. Ladd, 41 Or. 324 (68 P. 739, 93 Am. St. Rep. 732), Mr. Justice WOLVERTON, speaking for the court, said:

"A judgment void upon its face may be set aside or vacated at any stage of the proceedings, or at any time, whether within the term at which it was rendered or afterwards, when the attention of the court in which it was rendered is attracted to it. * * This power is inherent with the court, and will be exercised, even at its own suggestion, for the preservation of its dignity, the protection of its officers, and to arrest further action, which can serve no lawful purpose, and the most effectual method is by extirpation of the judgment itself as superfluous and vexatious."

Again, in Huffman v. Huffman, 47 Or. 610 (86 P. 593, 114 Am. St. Rep. 943), Mr. Justice MOORE said:

"* * Though jurisdiction of valid judgments and decrees ceases with the close of the term at which they are given, unless authority over them is retained by motion or other appropriate proceeding * * superior courts possess ample power at all times to vacate void judgments, decrees and orders, and it is incumbent upon them to purge their records of the entries of such nullities when their attention is called thereto."

Hence, the only question for our decision is whether the order made by Judge MORROW, setting the homestead apart to the widow, is void upon its face, for if so it was the duty of Judge TAZWELL to vacate the order either on his own motion or otherwise whenever his attention was called thereto and regardless of whether it was within the term at which it was rendered or at a subsequent term of that court. In Leet v. Barr, supra, it was unanimously held by this court that after the enactment of Chapter 112, Laws of 1919, which comprises Sections 221-226, Or. L., a homestead may be devised by its owner, subject only to the dower right of his widow, or, if not devised or disposed of in his lifetime it will descend to his heirs subject only to such dower right. This resulted from the express directions contained in Sections 225 and 226, Or. L.

It is conceded that at the time of testator's death, at which time the rights of the devisees under the will attached, the law in respect to the questions involved here had not been changed by any statutory enactment after the decision in Leet v. Barr, except as will now be noted.

At the time that decision was made Section 1234, Or. L., provided as follows:

"Upon the filing of the inventory the court or judge thereof shall make an order setting apart for the husband, widow or minor children of the deceased, if any, all the property of the estate by law exempt from execution. The property thus set apart is the property of such husband or widow to be used or expended by him or her in the maintenance of himself or herself and minor children, if any; or if there be no husband or widow it is the property of the minor child; or if more than one child, then of the minor children in equal shares, to be used or expended in the nurture and education of such child or children by the guardian thereof, as the law directs."

That section was amended by Chapter 263, Laws of 1923, by adding without any change to what has been already quoted the following provision:

"And that all orders heretofore made and entered of any court or judge thereof setting apart to any husband, widow or minor children of the deceased, any homestead under and by virtue of the provisions of section 1234, Oregon Laws, be and the same are hereby ratified, confirmed, validated and legalized in so far as such orders might or could have been lawfully made under the provisions of section 1234, Oregon Laws, the same being chapter 37 of General Laws of Oregon, 1919."

In Home Telephone Co. v. Moodie, 75 Or. 117 (145 P. 635), this court, speaking through Mr. Justice BURNETT, quoted with approval the following excerpt from City of Birmingham v.Southern Express Co., 164 Ala. 529 (51 So. 159), as follows:

"Special provisions relating to specific subjects control general provisions relating to general subjects. The things specially treated will be considered as exceptions to the general provisions. When a specific subject has been specially provided for by law, it will not be considered as repealed by a subsequent law which deals with a general subject in a general way, though the specific subject and the special provisions may be included in the general subject and general provisions."

In Rodgers v. United States, 185 U.S. 83 (46 L. Ed. 816,22 Sup. Ct. Rep. 582), Mr. Justice BREWER, speaking for the court said:

"It is a canon of statutory construction that a later statute, general in its terms and not expressly repealing a prior special statute, will ordinarily not affect the special provisions of such earlier statute. In other words, where there are two statutes, the earlier special and the later general — the terms of the general broad enough to include the matter provided for in the special — the fact that the one is special and the other is general creates a presumption that the special is to be considered as remaining an exception to the general, and the general will not be understood as repealing the special, unless a repeal is expressly named, or unless the provisions of the general are manifestly inconsistent with those of the special."

In that case the court quoted with approval the following:

"The general principle to be applied, said BOVILL, C.J., inThorpe v. Adams, (L.R. 6 C.P. 135) to the construction of acts of Parliament is that a general act is not to be construed to repeal a previous particular act, unless there is some express reference to the previous legislation on the subject, or unless there is a necessary inconsistency in the two acts standing together."

Holding to the same effect, see Barnes v. MassachusettsBonding Co., 89 Or. 141 (172 P. 95); Washington v. Miller,235 U.S. 422 (59 L. Ed. 295, 35 Sup. Ct. Rep. 119); 25 R.C.L., p. 927; 1 Lewis' Suth. Stat. Const. (2 ed.), §§ 274 and 275: Black on Interpretation of Laws, p. 116.

The mere reading of the amendatory clause which was added to Section 1234, Or. L., discloses that the amendatory provision was wholly retrospective in effect and could not have been intended to affect any case where the homestead owner died subsequent to the amendment. Hence, this amendment did not have any effect whatever upon the law as announced in Leet v. Barr, supra. The identical question here was directly passed upon by this court in Slattery v. Newell, 115 Or. 22 (236 P. 268). The opinion in that case was written by Mr. Justice BURNETT, who has since died, and was concurred in by the other three members of the department hearing it. The law is settled by Leet v. Barr,supra, and Slattery v. Newell, supra, and the question is no longer an open one. Hence, we have this situation confronting us: Judge MORROW made an order pretending to set aside a homestead as the separate property of the widow and there was no law in existence conferring upon him any such authority or power. His order, therefore, was null and void and of no effect whatever and was rightfully set aside by Judge TAZWELL.

Reference is made in the briefs to an amendment of Sections 225 and 226, Or. L., by Chapter 345, Laws of 1927, but that amendment was not made until after the death of the testator and, of course, can have no effect upon the rights of the parties which vested at the time of his death. For that reason any discussion of the effect of those amendments is wholly inappropriate and out of place in this case and anything that would now be said as to the effect of the amendments would be mere dicta.

For the reasons stated the order appealed from setting aside and vacating the former void order of the Circuit Court for Multnomah County, purporting to set aside the homestead of the testator to his widow, must be affirmed.

AFFIRMED. REHEARING DENIED.

McBRIDE, ROSSMAN, BELT and BROWN, JJ., concur.