Kerns v. Morgan

Citations

• 11 Idaho 572
• 83 P. 954
• 1905 Ida. LEXIS 95

Syllabus

<p>Ex Paste Order — Application for Order by Stranger to Action or Proceeding — Notice Required — Void Order — Vacation oe Void Order — Judgment on Appeal Pinal.</p> <p>1. Vhere a stranger to an action ot proceeding, who has not intervened and has never been made a party by order of court or in any manner recognized by the statute or rules of practice, files a petition and obtains an ex parte order without notice to any of the original parties to the action or proceeding or any person interested therein, held, that the order so procured is a nullity and void.</p> <p>2. The provisions of section 4229 of the Eevised Statutes, thatr^ “The court may likewise, in its discretion, after notice to the adverse party .... relieve a party or his legal representative from a judgment, order or other proceeding taken against him through his mistake, inadvertence, surprise or excusable neglect; and .... may grant the relief upon application made within a reasonable time, not exceeding six months after the adjournment of the term,” do not apply to judgments and orders which show upon their face that they are nullities and void, and in such ease the void order may be vacated after the lapse of more than six months after adjournment of the term.</p> <p>3. After a case, wherein the district court granted a perpetual injunction, has been reversed on appeal and the injunction ordered dissolved by the appellate court, the district court has no power or authority to again issue an order in the same case which will have the same effect, for a time at least, as the original judgment which has been reversed.</p> <p>(Syllabus by the court.)</p>