Patterson Land Co. v. Lynn ( 1917 )

Per Curiam.

The defendant has filed an application to recall the remittitur in this case. The original opinion reported in 27 N. D. at page 391, 147 N. W. 256, was filed March 6th, 1914, and a rehearing was denied April 11th, 1914. In his application for a recall of the remittitur the defendant assails both the findings of fact and the conclusions of law contained in the former opinion. Among other questions urged is that this court rendered judgment upon an amended pleading without permitting a trial upon the issue formed by such amendment. It is contended that the proper practice would have been to have directed the amendment to be allowed and remanded the case for trial upon the pleading as amended. We have examined the original briefs and find that considerable space was devoted to a discussion of whether the trial court should have allowed an amendment of the complaint. We have also examined the petition for rehearing, which consists of eighty-seven pages of typewritten matter. This petition is a complete re-argument of the entire cause and assails practically every portion of the opinion. The last eight pages of the petition are devoted almost exclusively to an attack on that portion of the opinion which deals with and allows the proposed amendment to the complaint and orders judgment upon the complaint as amended. The matter is argued at length and with great particularity, and it was claimed then, as now, that where an amendment of the pleading has been allowed, evidence formerly taken is not admissible to support substantive matter in the pleading as amended. No claim, however, was made in the petition for rehearing that any actual prejudice had resulted or that the defendant had any evidence which he desired to offer upon the issues arising -under the amended pleading. It will be noted tbat tbe original opinion was banded down and a rehearing denied more tban three years ago. It also appears tbat judgment was entered in tbe district court in accordance with tbe findings and conclusions of this court in July, 1914, and tbat notice of entry of judgment was served upon tbe defendant at tbat time. It further appears tbat proceedings have been bad in tbe district court in accordance with tbe directions contained in tbe former opinion herein to ascertain tbe amounts to be paid by tbe Patterson Land Company to tbe defendant for tbe amounts expended and incurred by him in obtaining titles, taxes paid by him, and tbe cost •of any improvements wbicb be may have placed on tbe premises. There is no claim tbat defendant has questioned tbe binding effect of tbe former decision during all of this time.

If tbe remittitur can be recalled in this case, it is difficult to conceive of any litigation tbat may be deemed definitely ended or any judgment of this court wbicb may be deemed final and conclusive. The rule, sustained by tbe overwhelming weight of authority, is tbat when tbe supreme court upon appeal becomes invested with jurisdiction of a cause, it retains such jurisdiction until tbe cause is disposed of and tbe remittitur sent down to tbe court below. And when it appears that after decision tbe remittitur is sent down intentionally in ■accordance with tbe court’s order, properly made in tbe usual way, -the supreme court loses all control over tbe cause and cannot subsequently recall tbe remittitur, any more tban it may ask. tbat a cause in wbicb no appeal has been taken be forwarded to it for decision. Tbe •only instances in wbicb tbe remittitur may be recalled are when it was sent .down through inadvertence, mistake, or fraud; tbat is, under such •circumstances -that it was not in fact tbe act of tbe court.

This rule has been announced by this court, and is founded in good sense and sound public policy. It is also sustained by the overwhelming weight of judicial authority. See Hilemen v. Nygaard, 31 N. D. 419, 154 N. W. 529, and tbe extended note to this case as reported in Ann. Cas. 1917A, pp. 282 et seq.

In this case a rehearing was denied after defendant bad presented dn bis petition for rehearing tbe very questions be presents now. Tbe remittitur was sent down intentionally as a result of the deliberate judgment of the court. The motion is denied.

Bruce, Ch. J., did not participate.