I concur in the views expressed in the dissenting opinion of Justice McNaughton. However, it seems to me that for the administration of even-handed justice the rule should be even more broadly stated than therein announced.
The question here for determination was decided by the supreme court of Washington, in Rogers v. Savage, 117 Wash. 521,201 P. 769, under a statute similar to C. S., sec. 7152, it being held (paragraph 1, syllabus):
"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, § 1718, so that the party against whom the judgment was rendered could appeal therefrom within the statutory time after reversal of the void order."
In the instant case the judgment was set aside by the trial court of its own motion, when there yet remained seven days in which to appeal from the judgment. From the order vacating the judgment an appeal was taken to this court. Upon due consideration this court held that the order of the trial court setting aside the judgment was void and directed the reinstatement of the judgment. The majority opinion holds that the statutory time for appeal began to run from the date of entry of the original judgment, and refuses to toll it from the time the judgment was set aside until reinstated.
When the original judgment was set aside, as is said in the Washington case, supra, "there became nothing from which they could appeal, and, the court having made an order granting their motion for a new trial, all reason for appeal upon their part ceased."
Where the judgment is set aside on motion of one of the parties seeking relief therefrom, the rule announced in *Page 633 the Washington case should be followed, since the right of or reason for appeal is then suspended, and the time for appeal should likewise be suspended until a superior court, when an appeal is taken, either reverses or affirms the order of the trial court.
In the majority opinion it is said in effect that, where upon an appeal from an order vacating a judgment the entry of such order is held to be without authority and the original judgment is reinstated, the order of reinstatement is but an idle act and ineffective for any purpose, since the original judgment erroneously set aside had never been dethroned. If not dethroned, it was certainly suspended and remained in abeyance until reinstated. In such circumstances no execution could issue, and it was as if no judgment had existed.
As I read the Idaho cases cited in the majority opinion, I do not think this precise question has been passed upon, and the cases are easily distinguishable from the present case. But, if an adopted rule of procedure works an injustice a court should not hesitate to correct it at the earliest opportunity.
I think the proper rule to be that the statutory period for appeal begins to run from the date of entry of the judgment, continuing to the time the judgment is set aside by the trial court, if that be done, then tolled pending disposition of any appeal from the order setting aside the judgment and until theremittitur is received directing reinstatement of the judgment, when the statutory period for appeal from the judgment is again put in motion. In other words, the aggrieved party should have altogether the full statutory time in which to appeal from the judgment. *Page 634