Thomas v. Thomas , 27 Okla. 784 ( 1910 )

On July 13, 1909, this court rendered an opinion in the above entitled cause to which, within a time extended on application, there was filed, on August 13, 1909, a petition for rehearing which, on December 7, 1909, was granted and the case submitted for oral argument at the January, 1910, term. The case was rebriefed and fully argued, and the former opinion, which reversed the judgment and decree of the trial court, was set aside, and on June 7, 1910, an opinion was rendered affirming the judgment. No petition for rehearing having been filed within the fifteen days allowed by rule 9 of this court (20 Okla. ix), the mandate in the cause was sent down to the trial court on June 22, 1910, spread upon its records and a judgment entered thereon by that court, June 30, 1910. August 3, 1910, counsel for plaintiff in error filed a motion asking leave to file a petition for rehearing and an order was made purporting to recall the mandate issued. In this condition of the case the court set the same down for briefing and oral argument both on the motion and the merits, and the issues involved have again had the attention of both court and counsel. Our jurisdiction to entertain the action is challenged upon the ground that, after this court has rendered a decision in a cause, and its mandate has gone down under the rules of the court, and is spread upon the records of the trial court, without fraud, accident, inadvertence or mistake, this court loses jurisdiction of the case and cannot entertain an application for a rehearing. This is the first time this question has been raised and presented, or that we have had occasion to investigate it, and, after giving the same our most painstaking care and consideration, we have come to the conclusion that, upon authority and reason, the objection must be sustained. It is manifest that there must be a finality somewhere in all litigation, and the logical point for the appellate jurisdiction to terminate over an action is that time when there is again vested in the trial court jurisdiction to proceed, carry out and enforce any judgment delivered.

A case similar to this is that of Dempsey v. Billinghurst,8 S.D. 86. In the consideration thereof the Supreme Court of South Dakota said:

"Under rule 24, which took effect April 4, 1893, theremittitur was held in this court thirty days thereafter, when, no petition for rehearing having been filed, nor any application made for a longer stay of the remittitur, the case was regularly remitted to the trial court. Several days thereafter this application to present a petition for a rehearing was filed, the application itself being dated after the remittitur and case had gone from this court. Ordinarily, and without a rule on this subject, a petition for rehearing may be made at any time during the term at which the case is decided, provided the case is still in the appellate court. The purpose of our rule was to avoid retaining the case in this court, to the manifest prejudice of the successful party, an unreasonable time after decision, and at the same time to give both sides ample time to know of the decision, and the grounds upon which it was based, so that either might present his claim for a rehearing. The rule has been in force two and one-half years, and, so far as we know, has been regarded as fair and satisfactory. It is well settled, and, it would seem, could hardly be otherwise in principle, that when the remittitur has gone down, without fraud, accident or inadvertence, the appellate court has lost its jurisdiction of the case, and cannot recall it."

Speaking to the same point, the Supreme Court of South Carolina, in the case of Carpenter v. Lewis, 65 S.C. 400, said:

"The first question that will be considered is whether this court has jurisdiction to entertain the motion to recall theremittitur. Section 12 of the Code provides that, 'The Supreme Court may reverse, affirm or modify the judgment, decree or order appealed from, in whole or in part, and as to any or all of the parties, and the judgment shall be remitted to the court below, to be enforced according to law.' In the case ofSullivan v. Speights, 14 S.C. 358, the court says: 'Under the rules of this court, when a case is heard here and determined, the remittitur to the court below is not sent down immediately, but it is retained in every case for ten days, unless the court direct otherwise. And on application showing sufficient cause, either of the justices, at chambers, may direct by order that it be further retained until the third day of the next session. The object of this is to reserve jurisdiction over the case, so that, should either of the parties desire to make any motion in reference thereto, they might have the opportunity to do so, and the court the power to hear it. After the remittitur, however, is sent down, the case passes beyond the reach of the court and its jurisdiction is lost, and no motion can be heard by this court on the matter thereafter.' "

One of the best considered cases confirming our view on this subject is that of Ott v. Boring, 131 Wis. 472, in which that court, citing a large number of state and federal authorities, said:

"The question of the period of jurisdiction of purely appellate courts is a somewhat intangible one and not to be decided always upon the same principles and considerations as those which regulate the jurisdiction of courts of general jurisdiction having the function not only of trial and judgment, but also of execution of the judgment. It seems from an examination of the authorities to be well-nigh unanimously declared that, in the absence of statute making a different provision, the jurisdiction of the appellate court over a given cause terminates whenever regularly, without inadvertence or fraud, it returns the record to the court of general jurisdiction. 2 Ency. of Pl. and Pr. 359, 384; 2 Spelling New Tr. App. Prac. §§ 733, 734; Hayne New Tr. App. § 293; Legg v. Overbaugh, 4 Wend. (N.Y.) 188; cases collected in note, 21 Am. Dec. 118;Delaplaine v. Borgen, 7 Hill (N.Y.) 591; Browder v. McArthur, 7 Wheat. (U.S.) 58; Peck v. Sanderson, 18 How. (U.S.) 42;Underhill v. Jericho, 66 Vt. 183, 28 A. 879; Sullivan v.Speights, 14 S. Car. 358; Caldwell v. Bruggerman, 8 Minn. 286;Dempsey v. Billinghurst, 7 S. Dak. 564, 64 N.W. Rep. 1124;Leese v. Clark, 20 Cal. 387; Richardson v. Chicago Packing,etc., Co., 135 Cal. 311, 67 P. 769; Ward v. Springfield F. M. Ins. Co., 12 Wash. 631, 42 P. 119; State v. Faulds,17 Mont. 140, 42 P. 285. This apparently rests largely upon the doctrine that when that act is done the jurisdiction of the lower court, which has been suspended meanwhile, becomes reestablished, and that both courts cannot have jurisdiction over the cause. Generally, too, it is held, in the absence of statute, that the power of an appellate court over its judgment, like that of courts generally, persists to the end of the term at which the judgment is rendered, and then absolutely terminates, except as it may be terminated earlier by the retransmission of the cause to the trial court."

The foregoing case may also be found reported in vol. 11, Am. Eng. Ann. Cases, 857, where it is extensively annotated, cases being cited from nearly if not quite every state in the Union, as well as the federal courts, and the general rule deduced from them all by the author of the annotation is in accord with that we herein announce, and is to the effect that the jurisdiction of an appellate court over a case ceases when it has regularly determined the issues involved and caused its judgment, in conformity with such determination, to be entered, and the case is remanded to the lower court for such action as may be necessary. Among the authorities which we have examined and which have not been heretofore mentioned, either in this opinion or in the case of Ott v. Boring, supra, in support of this rule, may be noted the following: Horton v. State of Nebraska ex rel. Haydenet al., 63 Neb. 34; Merchants' Nat. Bank v. Greenhood et al.,16 Mont. 395, 460; Merchants' Nat. Bank v. Grunthal, etc.,39 Fla. 388; Rowland v. Kreyenhagen et al., 24 Cal. 52; Trumpleret al. v. Trumpler et al., 133 Cal. 248; Putnam v. Clark etal., 35 N.J. Eq. 145; Bullion Mining Co. v. Croesus Gold andSilver Mining Co., 3 Nev. 336; Finlayson v. Kirby,127 N.C. 222; Lubbock v. Vince, 5 Tex. 415; Hopkins v. Gilman,23 Wis. 512; Rud v. Board of Com'rs. of Pope County, 66 Minn. 358, 69 N.W. 886; Seaboard Air Line Ry. et al. v. Jones, 119 Ga. 906;Zorn, Jr., et al. v. Lamar et al., 71 Ga. 85; Phelps v. Davis,etc., 25 Ky. 368.

It being manifest that both the appellate and the trial courts can not at the same time have jurisdiction to consider, hear and determine an action, the appellate court must logically, and of necessity, lose jurisdiction when the trial court again secures it, and the trial court acquires jurisdiction to proceed in any action appealed whenever the mandate of the appellate court has regularly reached it and is spread upon its records.

It therefore follows that the motion to be permitted to file the petition for rehearing presented must be denied.

All the Justices concur.