dissenting.
I would construe OK.S 18.160 as being available to the petitioner in this case. Although the statute is written in terms of “a judgment, decree, order or pro*58ceeding taken against the person seeking relief under the statute, it seems to me to be- a very narrow construction to limit it to the situation where the court’s action in entering the judgment, decree or order was at the request of a third person. I can think of no reason which would have prompted the legislature to bar relief simply because the person seeking relief rather than a third person caused the judgment, decree or order to be entered. Moreover, I think that' in the absence of a statute to the contrary, the trial court would have the power incident to its judicial function to grant relief where the judgment, decree or order was entered as a result of the mistake, inadvertence or surprise of the person seeking relief.
The majority opinion holds that even if the court had power to grant the relief prayed for by the petitioner, it was within the court’s discretion to grant or deny relief and that there was no showing that there was an abuse of discretion. In support of the trial court’s action, the majority opinion treats the entry of the order on April 21, 1970 as “the culmination of twelve separate steps, over a period of two months, to close the estate.” It appears to me that the petitioner might well have taken the first eleven steps and yet have intended to postpone the closing of the estate until he had completed the litigation pending in Case No. 7074.
The majority also holds that the trial court could reasonably draw the inference that petitioner intended to close the estate. I would regard that as an inference founded upon conjecture and certainly contrary to the normal course of action to be expected from one who has a lawsuit pending which can be kept alive only if the estate is left open.
*59The majority further speculates as to the possible harm which the defendants in the other lawsuit might suffer as a result of permitting that suit to continue. The same problem would face those defendants if petitioner had not closed the estate. Whether an adequate undertaking could be provided in the other proceeding should be a matter to be disposed of in that proceeding, not in the present case.
I realize that the trial court must be given a certain leeway in passing upon a motion for relief from inadvertent action. The difficulty in the present case is that there is no indication from the record why the trial court denied petitioner’s motion. Moreover, there is nothing to indicate that the trial court had reasons for denying the motion. It is argued that the trial judge might have denied the motion because he felt that petitioner had not taken prompt action in bringing the other litigation to a conclusion.
However, there may well have been good reasons for the delay. And it would appear from the trial court’s letter opinion giving the reasons for denying petitioner’s request for relief that delay was not one of the grounds for the court’s action.①
*60If petitioner had been guilty of undue delay, the trial court can dismiss the other action on defendants’ motion in that lawsuit. I can see nothing in the present proceeding which would constitute grounds for denying the relief sought by the petitioner.
The trial court’s letter opinion reads as follows:
“Gentlemen:
“Please find enclosed a copy of my order denying the ‘Petition to Correct Order’ filed on behalf of Louise A. Tracy. The court is of the opinion that there are several reasons the petition should be denied among which is the fact that neither the petition nor any written or oral argument have convinced the court that there is any valid and legal reason for reopening the estate at this time. If the court is wrong in this then perhaps my order denying the petition should be appealed along with any other appeal so that the appellate court might decide whether there is any valid or legal reason for reopening the estate.
*60“In any event it would appear to the court that there is no inherent power in the court to grant such a petition by entering an order nunc pro tunc unless the mistake were that of the court itself, which it wasn’t. Any reopening would have to be done by authority of ORS 116.233 which would make such a reopening as of this date and not as of April 21, 1970. That statute requires that before the court exercised its discretion in reopening the estate that other property must be shown to have been discovered and probate or some necessary act remain unperformed or any ‘proper cause appearing to the court.’ No new property having been claimed to have been discovered, no unnecessary act remaining to be performed having been alleged and the court not being convinced that there is any other ‘proper cause’ for such a reopening, it became necessary for the court to deny such a petition even if it were construed to be a petition to reopen the estate rather than as alleged by the petition asking for a previous order to be corrected.
“It is also the opinion of the court that the ending provision of ORS 116.233 barring a reopening as to a claim already ‘adjudicated or barred’ may well be applicable also in this case.
“In any event for the various reasons given the court is denying petition.”