This action was commenced by plaintiffs on the 24th day of February, 1914, by filing their petition in the office of the clerk of the district court of Muskogee county, for a temporary injunction asking that the sheriff of Muskogee county and the defendants be restrained from selling under execution certain lands, and on the 3d day of March, 1914, the district court granted a temporary injunction, and on the final hearing of said cause the temporary injunction theretofore issued was made permanent, and on a full hearing of said cause the court rendered general judgment in favor of the plaintiffs, plaintiffs in error herein. Thereafter, on the 19th day of June, 1915, defendants filed their motion for a new trial, and on the same day said motion was overruled and appeal allowed, an extension of 60 days from said date was allowed to make and serve case-made to the Supreme Court, and plaintiffs were allowed 10 days to suggest amendments and the case-made to be settled and signed on five days' notice by either party. Thereafter, on the 6th day of July, 1915, the defendants, instead of taking the necessary steps to perfect their appeal, filed a motion in the office of the clerk asking the court for an order vacating and setting aside the order theretofore made overruling the motion for a new trial; and thereafter on the 12th day of July, 1915, there was filed in the office of the clerk a response by plaintiffs to the motion of the defendants, asking that the court vacate the order overruling the motion for a new trial. The principal averments in said response were to the effect that the court was without jurisdiction to hear and determine the motion filed to vacate an order overruling a motion for a new trial and granting an appeal to the Supreme Court, for the reason it involved a re-examination of matters already presented and passed upon by the court and does not come within the statutes of Oklahoma giving the court power and authority to set aside judgments on the grounds enumerated in the statutes, and for the further reason that said motion asking that the former order overruling motion for a new trial be vacated and set aside, contained no question other than that which was passed upon on the presentation of the original motion, and the matter was therefore res adjudicata, and the court, upon the overruling of the motion for a new trial and giving an extension of time in which to make and serve case-made, had lost jurisdiction of the cause of action, and that said order overruling motion for a new trial was reviewable only upon appeal. Thereafter, on the 17th day of July, 1915, the court passed upon the last above-mentioned motion and allowed the same, and there was filed in the office of the clerk an order granting the motion and vacating and setting aside the order overruling the motion for a new trial, to which ruling of the court the plaintiffs then and there excepted. The order further provided that the judgment theretofore rendered in favor of the plaintiffs be set aside, and the permanent injunction awarded them be dissolved, and the defendants granted a new trial. Thereafter, on the 8th day of December, 1916, a new trial was had of said cause and at this trial judgment was rendered in favor of the defendants, from which plaintiffs prosecute this appeal.
There are other facts which might be material to a just settlement of this case, but plaintiffs in error have briefed the case and base their sole right to a reversal of this case on the one assignment of error, to wit, that the court had no right to entertain a motion to set aside its order overruling a motion for a new trial, and having granted an extension of time in which to make and serve case-made, it had no further jurisdiction, and therefore no right to pass upon any judgment or order made in the case, although all of the judgments and orders and proceedings were had at the same term of said district court.
We would not commend the practice as pursued in the trial of this case; but we think that the law of this case has been decided heretofore by our Supreme Court, and we find it to be in conformity with the general rule of law governing the right of courts to vacate, set aside, modify, or annul its judgments and orders during term time as laid down in 23 Cyc. 901.
In the case of Georgia Home Ins. Co. v. Halsey, 37 Okla. 678,133 P. 202, the court uses this language:
"A court has control of its judgments during the term at which they are rendered and may set them aside of its own motion, if they are erroneous." *Page 272
In the case of Shallenberger v. Brady, 37 Okla. 440,131 P. 1096, we find this language:
"The judgment was set aside at the same term at which it was rendered. A court has control of its proceedings during the term and may set aside a judgment upon motion or upon its own motion, in proper cases, at any time during the term. When a court sets aside a judgment during the term at which it was rendered, the only question upon appeal is whether the judgment should have been set aside, not whether the court had jurisdiction to set it aside. Of course, in order for a party to take advantage of the court's refusal to set aside a judgment, he must have complied with the statute with reference to motions for new trials; but his failure to do so does not affect the jurisdiction of the court to act."
The court further states in Philip Carey Co v. Vickers,38 Okla. 643, 134 P. 851, that:
"It is a general rule of law that all the judgments, decrees, or other orders of the court, 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, or modified by the court."
In the case of Hogan v. Bailey, 27 Okla. 15, 110 P. 890, which is a case very similar to the one at bar, we find this language:
"It is insisted on the part of counsel for movant that, the court having once acted on the motion for a new trial, its power over the case and the order thus made was final and conclusive, and that the ruling made on the motion filed to vacate and set aside such order was error. The rule obtaining in all courts of general jurisdiction, except where restricted by some statute, is that during the whole term at which a judgment or order is rendered it remains subject to the plenary control of the court, and, where the administration of justice will be conserved thereby, it may be vacated and set aside, modified, or annulled. This power over the judgments and orders of such a court is not dependent upon any statute but is inherent in the court itself."
There is apparently a conflict of Oklahoma authorities on this question. The case of Lookabaugh v. Cooper, 5 Okla. 102,48 P. 99, is very much in point, and the learned justice very concisely lays down the rule that, in the absence of a showing of irregularity, fraud, unavoidable casualty, or misfortune, the district court has no power to set aside its order overruling a motion for a new trial upon a reconsideration of the same motion already passed upon, and a reversal of such order can be had only by proceedings in error in the Supreme Court. While we are inclined to feel this would be a good rule of practice and procedure in the trial courts, it occurs to us to be in conflict with the later decisions of our Supreme Court, and also in conflict with the general rule of law governing the question involved here.
Finding no error in the action of the trial court in entertaining the motion to set aside and vacate its former order refusing to grant a new trial, and none of the other assignments of error being pressed or called to our attention by the brief of either plaintiffs in error or defendants in error, we therefore affirm the judgment of the trial court.
On Rehearing.