I am unable to concur with the majority opinion. As I understand the record the judgment was entered December 20, 1929. On February 6th the defendant moved to set aside the judgment. On March 12th this motion, treated as a motion for new trial, was denied. Thereupon the court took a hand and of its own motion set aside the judgment and ordered a new trial. April 10th the plaintiff appealed from the order setting aside the judgment and granting a new trial. This order was reversed on appeal, and on October 21, 1930, on the remittitur, the original judgment was reinstated. Defendant on that day filed notice of appeal from the original judgment. We are confronted with a motion to dismiss the appeal from the judgment as filed too late.
The majority opinion, it seems to me, does not give sufficient consideration to the fact that the order setting aside the judgment was on the court's own motion. That is to say, I fear the court treats this order as an order entered in a proceeding against the judgment. I say this because all of the long list of cases cited deal with orders entered in proceedings against the judgment. As stated in the opinion: ". . . . the following cases hold that proceedings, ineffective as to the previous judgment, toll the statute during the time they are in operation, or being considered by the trial court: . . . . The following authorities hold that such proceedings do not toll the statute": Here a long line of authorities are cited, headed by two opinions by this court, which announce or follow the doctrine that one may not extend the time in which to appeal by proceedings *Page 630 such as moving for a new trial, or moving against the judgment.
I do not think we should treat an order entered on the court's own motion as "a proceeding" against the Judgment.
I feel that C. S., sec. 7152, allowing ninety days in which to appeal, is for the benefit of the party feeling aggrieved by the judgment, and intends he shall have full ninety days in which to appeal the case, or at least in which to pursue that or some other remedy. In this case the judgment stood eighty-three days subject to appeal. Then it was vacated, not in a proceeding against it, but on the court's own motion, and a new trial was granted. After the error made by the trial court of its own motion was cleared from the record and the judgment was reinstated, in my opinion there remained seven days in which to appeal.
A great many courts hold that proceedings in good faith against the judgment may extend the time in which to appeal. Many, I think a majority, and among them Idaho, hold such proceedings do not extend the time. I do not care to discuss the merits of either rule. Granting that one may not extend the time in which to appeal by motion for a new trial or motion against the judgment or for modification of the judgment, still this case is not within that rule.
In the cases cited, in support of the rule under which they are cited, and in support of the decision in this case, the losing party instead of appealing chose a different course. If he did not have his full statutory time in which to appeal it was always because the time passed while the appellant was erroneously pursuing some other remedy. The worst any of the courts have done has been to deny the party additional time because his attorney consumed the time for appeal in pursuit of the wrong remedy.
In this case we are confronted with this situation, which is out of the ordinary: The trial court having denied a motion to vacate the judgment and grant a new trial, nevertheless on his own motion entered a void order to that *Page 631 very effect. Had the trial court, though he thought the judgment erroneous, stopped where the proceedings before him ended, the defendant would have had yet seven days to appeal and correct error in the judgment, if any. This error of the court interfering with the appeal can hardly be fairly charged to the litigant. It seems to me he should not be deprived of the remaining time to appeal by reason of it.
Some stress is placed in the majority opinion on the fact that this order vacating the judgment was void. I cannot think that materially alters the situation. I have found no case where lawyers were so astute in the practice as to appeal from a judgment which had been vacated and set aside by a void order, nor have I found a court or text-writer willing to vouchsafe such an extraordinary proceeding. Theoretically, of course, a void order or judgment has no force, but practically, until supplanted, it has as much force as a valid one. The fellow in jail on a void judgment theoretically is a free man, but in reality he is in jail and must stay there until a better judgment is entered carrying out the theory. In Rogers v.Savage, 117 Wash. 521, 201 P. 768, the Washington court held an order setting aside a judgment and granting a new trial, which was void because beyond the power of the court, suspended the right of or reason for an appeal from the judgment, and therefore suspended the time within which the appeal must be taken under Rem. Code 1915, sec. 1718.
In the absence of any authority to the contrary, I very much doubt if the appellant in this case had a right to appeal from the vacated judgment. Certainly there was no apparent reason to do so. Until something further occurred in the proceedings he was hardly an aggrieved party.
Where an attorney erroneously pursues the wrong remedy during the ninety days allowed him for appeal, rights of the other party to a speedy determination of the litigation may require a holding that such proceedings are taken by the attorney at the client's peril. To thus hold the client responsible for the errors of his attorney seems to me quite *Page 632 all even-handed justice requires. To charge him also with the errors of the court appears to me as extending the doctrine beyond any foundation.