Catherine Mulcahy, Appellee, v. The City of Moline, Appellant

Kansas Supreme Court1917-10-06No. No. 21,079

101 Kan. 532

Summary · law.co

Holding. The trial court did not lose jurisdiction over the case when it dismissed the complaint, and it properly granted the plaintiff's motion to vacate the dismissal and reinstate the case because the motion was filed and acted upon before the May term of court formally expired. The judgment is affirmed.

Catherine Mulcahy sued the City of Moline for damages arising from her husband's death while working in the city's service. A demurrer to her complaint was sustained and the case was dismissed. Mulcahy then filed a motion to vacate the dismissal and reinstate the case, which the trial court granted. The city appealed, arguing that the court had lost jurisdiction once the case was dismissed and that Mulcahy's only recourse was to file a new action with proper service of process.

The court addressed whether the trial judge retained jurisdiction to grant Mulcahy's motion to reinstate. The key issue turned on whether the May term of court had formally ended before the motion was filed in July and granted in September. Because the next term did not begin until September 18, and there was no clear showing that the May term had formally adjourned before the motion was acted upon, the court presumed the trial judge's actions were regular and proper. The court also clarified that a judge may conduct judicial business at chambers anywhere within the district, even while presiding over a different county's regular term.

The trial court therefore retained jurisdiction to reinstate the case, and Mulcahy was permitted to proceed with an amended complaint.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether a trial court loses jurisdiction to vacate a dismissal order after judgment is entered
Timing of court term expiration and retention of judicial jurisdiction
Authority of a district judge to conduct judicial business at chambers outside the courthouse during a regular term

Procedural posture

The City of Moline appealed from a trial court order that granted the plaintiff's motion to vacate a dismissal and reinstate her wrongful death action.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

The opinion of the court was delivered by

Dawson, J.:

This appeal presents a simple question of practice and procedure. The plaintiff sued the defendant for damages for the death of her husband, who was killed in the service of the defendant while excavating a ditch for a water main. A demurrer to her petition was sustained, and she elected to stand upon her petition, and the case was dismissed at her cost.

Later the plaintiff filed a motion to set aside the order of dismissal and to reinstate the case, and she asked for time to file an amended petition.

This motion was allowed, and the city appeals, contending that when the action was dismissed the court lost jurisdiction of the cause and of the defendant and that the only procedure open to plaintiff, if any, was to commence a new action with the regular service of summons. ■

The city’s contention would be good if the term of court at which the action was dismissed had expired before the motion to vacate the order of dismissal and to reinstate was filed and before the trial judge had made some.order concerning it (Martindale v. Battey, 73 Kan. 92, 84 Pac. 527; Welling v. Welling, 100 Kan. 139, 163 Pac. 635), but if the motion was filed and some rule or order concerning it was made within the term, the court had not lost jurisdiction and might entertain the motion or make any other appropriate order within its judicial discretion. (Sylvester v. Riebolt, 100 Kan. 245, 164 Pac. 176.)

Had the term of the district court of Elk county expired when the motion to vacate and reinstate was filed, or when the court granted that motion? The record does not show. A recourse to the statute shows that the terms of that court begin on the first Monday in January and May and the third Monday in September. (Gen. Stat. 1915, § 3031.) A term of court does not necessarily end until the beginning of the next succeeding term. The order or judgment of dismissal at plaintiff’s cost was made at the May term, on June 27, 1916. The motion was filed on July 11, 1916, and granted on Septembér 14, 1916. The next term of court did not begin until the third Monday in September, which was on September 18, four days later. In the absence of a clear and positive showing that the district court of Elk county had formally adjourned its May term before the proceedings complained of transpired, a presumption of their regularity must be indulged. Omnia rite esse acta prxsumuntur. And so the city must plead to the cause as reinstated; but, if so advised, it may plead the facts relating to any formal adjournment of the May term.

No significance attaches to the fact that the judge of the district court of Elk county was sitting at chambers in Butler county when the action was dismissed, nor because he ordered the dismissal vacated and the cause reinstated, at chambers, while he was holding the regular term of the Chautauqua county district court. Whatever a district judge may do at chambers he may do at any time and anywhere within his entire judicial district; and while he is presiding at a regular judicial term in one county he may occupy his spare time in dispatching judicial business pending in the district courts of the other counties of his electoral bailiwick, if it be of a character which may bé disposed of at chambers. Such is the elastic scope of the new code and related statutes. (Rea v. Telephone Co., 87 Kan. 665, 667, 125 Pac. 27; Bank v. Courter, 97 Kan. 178, 183, 155 Pac. 27.)

Judgment affirmed.