Hazard v. Cole , 1 Idaho 276 ( 1869 )

On Petition eor a Beheading.

Lewis, J.

It is, perhaps, well settled that this court will not grant a rehearing in a case like the one at bar, unless it is probable that a different decision from tbe former would be made. It seems that in California, from whence tbe civil practice act and whole judicial system of this territory have been taken, and tbe decisions of whose courts are -generally relied on as good law, has adopted and declared tbe rule in that state to be, that a rehearing will not be granted with tbe same indulgence as formerly. (7 Cal. 330.) And while this court will at all times be willing to correct any errors it may commit, yet in tbe present case we will not disturb tbe action of the court as formerly constituted unless manifest error has been committed.

And in tbe consideration of this petition it of course becomes necessary to examine to some extent tbe merits of tbe case looking at tbe bill, the answer and tbe facts, taking, however, tbe facts as found by Judge Cummins. Tbe basis of tbe whole proceeding is a contract alleged by tbe plaintiff to have been made between himself and tbe defendant Cole; that they should simultaneously commence suits by attachment, against tbe Lincoln mining company, in tbe event that a certain warrant in Cole’s favor, drawn by an officer of the company upon tbe treasurer thereof, at Providence, Bbode Island, was protested for non-paym'ent, or any other drafts upon tbe treasurer of tbe company were dishonored; be, Cole, being agent of the express company, bad made such arrangements that be would have tbe first information of tbe dishonor of any drafts on tbe company. It seems, also, that at tbe time of tbis alleged contract, both plaintiff and Cole knew that tbe Lincoln silver mining company was largely indebted to sundry laborers, mechanics, merchants, and business men, who were urgent in their demands and threatened suits upon the first rumor of the dishonor of any such drafts.

The effect of the contract was this: the means of information possessed by Cole as express agent were to be used by Cole and the plaintiff to secure the amounts due them from the Lincoln company, by the attachment of its property, while the laborer and business man were “to be squeezed out,” as it were. Now, the court below finds that there was no such contract. The old equity maxim, “ that he who seeks equity must do equity,” as also that a man must come into a court of equity with clean hands, applied to the alleged contract in this case, would not entitle the plaintiff to the relief sought, had he succeeded in establishing the contract. It is true that the parties might lawfully make such a contract, but if, after it was made, one should disregard it and secure himself first, equity would not interfere, but leave the parties to their rights at law, for the parties would only be placed in the same condition in which they by their agreement sought to place the other creditors.

It is also well established, that when a party has once had a plain, adequate remedy at law, and by his own laches loses it, equity will not relieve him. A court of equity will not encourage negligence, but will insist that every man take advantage of his legal rights at the proper time. The plaiutiff herein had a plain simple remedy at law — the statute gave him the right to redeem. Had there been any question as to the amount to be paid, or the kind of money, the court would have saved his rights and determined the sum. But this is not a bill to redeem. The court below finds that the real estate in question sold for eleven thousand four hundred and thirty-five dollars and fifty-four cents. There is nothing to show that any such sum was tendered or offered, in accordance with the statute.

The j udgments of Cole were in no sense void, but merely irregular, and would have been corrected on motion in the proper court by the defendant, or on a bill to redeem by a creditor.

The rights of the plaintiff in this case are no greater than those of any judgment creditor. He bad the right to redeem. The law gave bim tbe right, and the court would have awarded it. In addition to the rights given him by law, Cole entered into a special contract with plaintiff, declaring the sum at which he might redeem, and plaintiff agreed to pay such sum. Looking at the whole case, we are of opinion that the conclusion of Judge Cummins, that there is no equity in the bill, was correct.

It is especially found by the court below that there was no fraud in the judgment or sale thereunder. We think that so far as the records in this case disclose the facts, Cole acted in entire good faith, his sole object being to secure his claim. The plaintiff, in addition to his statutory rights, had a written contract with Cole as to the sum to be paid and the time of payment. What act has Cole done that is inequitable? We have shown that equity ought not to enforce the contract claimed to have been made, and on which this bill is founded.-

We will not in detail examine the points made by the plaintiff in his petition for a rehearing, but briefly refer to some of them. As to the question of practice in filing the finding after the entry of judgment, in the case at bar the objection is merely technical; it has worked no injury to the plaintiff. Whether the check or warrant on the treasurer of the company was, within the meaning of the statute, a bill of exchange, we think is of no moment in this case. We might hold it not to be such, and yet it would make no difference in the determination of this case.

As to the opinions of the attorney of Cole and statements of Cole himself, as to which sale he claims under, it can be of no moment; there could be but one valid sale, and the plaintiff was bound to know the law in that regard. And, as we have before suggested, the rights of the plaintiff would have been saved and protected by the court, and an adjudication would have been made as to which sale was legal, and the sum required to redeem would have been declared.

This is one of those unfortunate cases involving a large amount of property — wherein the plaintiff has slept upon his rights till they are gone, and then seeks the aid of a court of equity to restore him to the rights that the law had given him and by his negligence he had lost.

We have carefully scrutinized this case, hoping to be able to afford the plaintiff some relief — indeed, we were anxious to do so; but from the whole case we are satisfied that there is no equity in the bill; hence the motion for a new trial was properly denied, and the petition for a rehearing will be overruled.

Rehearing denied.

Noggle, C. J. I concur.

On a Motion to Modify the Judgment oe the Supreme Court.

Lewis, J. This cause has been argued by counsel and submitted to the court on the motion of plaintiff to modify the order issued herein, of the eighteenth of May, 1869, and to order the clerk to transmit the papers on file to the court below.

This cause came on to be heard in the district court for Owyhee October 22, 1868, and was submitted to that court on motion for a new trial, and on motion of the district court the motion of the plaintiff for a new trial was adjourned into this court under the provisions of sec. 326 of the practice act.

On the twenty-first of January, 1869, this case came on to be heard in this court on the motion of plaintiff for a new trial. The said motion was argued at length and was submitted to and taken under advisement by this court February 3. On the fifteenth of May the opinion was announced and judgment entered herein denying the motion remanding the case. On the seventeenth of May the clerk was ordered to transmit the papers to the court below. On the eighteenth of May, on motion of counsel for defendant, the judgment of this court was modified so that this court not only denied the motion for anew trial, but also affirmed the judgment of the court below. On the same day a remittitur was issued accordingly. On the twenty-second of May the order to the clerk to transmit the papers to the district court was vacated, and of the same date it was ordered that remittiturs in all cases decided at this term of the supreme court be issued on payment of the clerk’s costs.

The above is the status of this case as we glean from the records herein.

The questions to be determined by this court, then, are:

1. Ought the said order be modified ?

2. Has this court the authority to modify the same ?

This court has no original jurisdiction in this case, and only acquired jurisdiction in pursuance of sec. 326 of the Practice Act.

That act, among other things, provides “ that all questions of law arising on motions for a new trial in the district court may be adjourned into the supreme court for decision, and the supreme court may give judgment or remand the case.”

We are of opinion that all cases that are brought into this court under the extraordinary provisions of this section, which serves to empower a district court to transfer parties litigant to this court without even saying “by your leave,” should be determined solely upon the questions adjourned here for decision.

The case at bar was submitted to the district court on the plaintiff’s motion for a new trial. The question then pending was: Shall a new trial be ordered or denied? That was the only question adjourned into this court for decision, and this court had no authority or jurisdiction to hear and determine any other question. The latter clause of section 326, “or may make any order according to the justice of the case,” in our opinion has no application to the case at bar. This court then having disposed of the only question before it, to wit, the motion for a new trial, could go no further, and we are satisfied that this court as formerly constituted were of that opinion, as evidenced by the order made herein of May 15; and the order of May 18, being made without authority, should be revoked.

As to tbe authority of this court to modify this judgment and order, that will of course depend on the fact as to whether the jurisdiction terminates on sending down the remittitur. The general rule seems to be well settled that this court loses jurisdiction of a case when the remittitur has been sent to and filed in the court below. (Grayson v. Ruckle, 1 Cal. 192; Leese v. Clark, 20 Id. 387; Rowland v. Kreyenhagen, 24 Id. 52.)

This general rule rests, however, on the supposition that all the proceedings have been regular, that no fraud or imposition has been practiced upon the court or opposite party; for if such appears to have been the case, the appellate court will assert its jurisdiction, and recall the case. Against an order or judgment improvidently granted, upon a false suggestion or under a mistake of facts, the court will afford relief even after the adjournment of the term, and will, if necessary, recall a remittitur. (24 Cal. 52.)

A decree will be set aside for irregularity after the record has been remitted. (Wales v. Travis, 8 Johns. 566; Chamberlain v. Fitch, 2 Cow. 243.)

Under rule 18 of this court, the plaintiff in this case has to the close of this term to file a petition for a rehearing, and the remittitur herein could not properly issue until the close of the term, unless so ordered by the court. No such order was made by this court. The remittitur was issued on the eighteenth of May. The general order directing re-mittiturs to issue on payment of costs has not, then, been made; and even if it had been so made, the defendants have not brought themselves within the rule.

Believing, then, that the order of this court, affirming the judgment of the court below, was at least improvidently made, and that this court has the authority to correct the same, we have no hesitation in so doing. As to the latter part-of plaintiff’s motion, asking that the papers be sent down, we are clearly of opinion that the papers in this case properly belong to the district court of the third judicial district. They were brought here by that court for the purpose of determining the motion adjourned, and when that question was disposed of, the purpose for which they were here was accomplished, and being a part of the records of the court below, they- should be returned there. It would be an unreasonable practice to leave the court below without any record of this case, and such as we are not willing to adopt. The papers should be returned.

We shall therefore order that the remittitur issued herein be recalled; that the order and judgment of this court of the eighteenth of May, 1869, affirming the judgment of the court below, be vacated and set aside; that the papers herein be transmitted to the court below, and that a remittitur issue in accordance with the order and judgment of this court of the fifteenth of May. ■

Noggle, C. J.: I concur.