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Bailey v. Steele

November 10, 1972

BAILEY, APPELLANT,
v.
STEELE, RESPONDENT



Appeal from Circuit Court, Clackamas County. P. K. Hammond, Judge.

Ferris F. Boothe, Portland, argued the cause for appellant. With him on the brief were Black, Kendall, Tremaine, Boothe & Higgins, Portland.

No appearance by respondent.

In Banc. Tongue, J. McAllister, J., dissenting.

Tongue

This is an appeal from an order denying plaintiff's motion to set aside a default judgment against defendant in a personal injury case.

In our previous decision in Bailey v. Universal Underwriters Ins., 258 Or 201, 474 P2d 746 (1970), we held that plaintiff was not entitled to recover against defendant Steele's insurer for the reason, among others, that Steele had failed to cooperate with the insurance company and that, as a result, it had been prejudiced by the entry of the default judgment against Steele. Following the filing of plaintiff's motion to set aside that default judgment, defendant Steele filed a "Consent to Entry of Order Setting Aside Default Order and Judgment."

The trial judge, in a memorandum opinion, stated that he "* * * would be inclined to grant [plaintiff's]

motion if this Court had the discretionary authority to do so, * * *" but denied the motion on the ground that it had no jurisdiction or authority to set aside the default judgment and that defendant's consent did not confer such jurisdiction upon the court.

We hold that the trial court erred in holding that it had no jurisdiction to set aside the default judgment in this case upon motion of the plaintiff and consent of the defendant. ORS 15.030 provides that "[f]rom the time of the service of the summons * * * the court shall be deemed to have acquired jurisdiction, and to have control of all the subsequent proceedings * * *." It has been held by this court that the authority of a court to vacate or set aside its own judgments is an inherent power of all courts of record or of general jurisdiction and may be exercised without any special statutory authority. Mitchell v. Or., Wn., Credit & Coll. Bur., 188 Or 389, 393, 215 P2d 917 (1950).*fn1

In past years this inherent power of a court could be exercised only during the same term of court. Miller v. Miller, 228 Or 301, 304, 365 P2d 86 (1961), and Koennecke v. Koennecke, 239 Or 274, 397 P2d 203 (1964). In 1959, however, this limitation was removed by the adoption of ORS 1.055, which provides that "* * * the existence or nonexistence of a term of court has no effect on the duties and powers of the court," if done "* * * within a reasonable period of time."

See Miller v. Miller, supra at 305, and Koennecke, ...


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