Cothran v. Knox , 17 S.C. 207 ( 1882 )

The opinion of the court was delivered by

Mr. Justice Fraser.

This was a petition in the Circuit Court, to reopen and rehear a judgment or decree of the Circuit Court modified by the Supreme Court. The original cause in which the petition was filed was heard on circuit at Abbeville, in April, 1879, on the report of a special referee and exceptions. The decree of the Circuit judge was filed December 18, 1879, and both parties appealed to the Supreme Court. The case was heard in the Supreme Court, and the judgment of the Supreme Court was filed, July 30, 1880, by which the Circuit decree was modified. The remittitur was filed in the Circuit Court August 31, 1880. This petition for a reheai’ing was filed in the Circuit Court September 14, 1880.

The grounds on which the petition is based are: 1, For error apparent on the face of the judgment: 2. Because of newly-discovered evidence materially varying the facts; and the petition prays that the original cause may be recommitted to the referee, to restate the accounts with instructions to inquire as follows to wit, into certain items of the account as to which it was alleged that there was error in the report as confirmed by the decree. The Circuit judge held that after there had been an appeal in the cause, and after a hearing, a judgment rendered thereon, and the remittitur filed in the Circuit Court, there could be no rehearing of the cause, or permission given to file a bill of review except for newly-discovered evidence; and that under such circumstances the Circuit Court liad no jurisdiction to make an order for a rehearing, or for leave to file a bill of review, even for after or newly-discovered evidence; that the judgment of the Supreme Court, the highest appellate tribunal, was final and conclusive on the Circuit Court.

From this judgment on the petition. an appeal has been taken to this court: 1. Because it is respectfully ■ submitted, that his Honor erred when he held that he did not have the jurisdiction to grant the relief sought. 2. Because it is respectfully submitted that his Honor erred when he held that the petition sought to alter and review a decree of the Supreme Court; whereas the case only went to that court in its appellate jurisdiction, and it having sent down the remittitur, the jurisdiction ended, and the decree was the decree of the Circuit Court.

In the argument before this court it was strenuously urged that the judgment or decree of the Circuit Court in the original cause wdiich was modified by the judgment of the Supreme Court was not final, and was only interlocutory, and that the accounting between the plaintiff and defendant has been left open by it. It is sufficient to say, that no such question has been raised by the grounds of appeal, and it is not proper for this court to express any opinion as to the proper construction of the judgment which has been rendered. If, however, this be the correct view, it is not easy to see why this petition for a rehearing is necessary, or why all the questions which petitioner, the defendant in the original cause, desires to make .cannot be raised in the ordinary way in the carriage of the original cause in the various stages of preparation and trial.

The grounds of appeal do not raise the question as to the right of the Circuit Court to order a judgment or decree to be reopened and reheard for error on the face of the decree, or for newly-discovered evidence where there has been only a Circuit decree which has not been affirmed or modified by the Supreme Court. The right of the Circuit Court to order a decree to be reopened and reheard for newly-discovered evidence in a case where there had been no appeal has been recently affirmed in the case of Durant v. Philpot, 16 S. C. 116. The only question in the case now before the court is whether the Circuit Court lias such jurisdiction in a case where the decree of the Circuit Court has been affirmed or modified by the Supreme Court on appeal.

In Ex parte Dunovant, 16 S. C. 299, this court holds the following language: “If, therefore, after a trial in the Circuit Court a party wishes to avail himself of the benefit of after-discovered evidence, his application should be made in the first instance to that court, as we have no jurisdiction to consider the question until after it has been passed upon by the Circuit Court.” In Ex parte Dwnovcmt there had been an appeal to the Supreme Court, the appeal heard, and the judgment of the Supreme Court rendered, and the remittitur sent •down to the Circuit Court. While this court holds in the latter case cited that applications for a rehearing should be made originally to the Circuit Court, it does not hold that in that particular case it could have-been granted there. The court did say that if heard in the Circuit Court, there were only such grounds alleged as were proper for an appeal and not for a rehearing, and might have assigned in that particular case another reason if it had been deemed necessary. The court did say what was sufficient for the purpose, and it amounted to this — that when a proper case arose the application for a rehearing should be made in the first instance to the Circuit Court.

The authorities have been so carefully 'and clearly stated by the Circuit judge in the judgment from which this appeal is taken, that this court does not deem it necessary to add much to what has been said by him. It is by no means safe to hold that because the old courts of law and equity, and of appeals, exercised certain powers, that the same powers can in all cases be exercised by the courts of the present day which have succeeded them. The present courts have been created by a new constitution, and are governed by new statutes which in many respects modify their powers. The code, § 32, 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 its judgment shall be remitted to the court below to be enforced according to law.”

When the judgment of the Circuit Court is simply affirmed it may seem that the judgment in the cause in which it is rendered is only a judgment of the Circuit Court unrevoked; to reverse a judgment of the Circuit Court may perhaps mean something more than merely to annul or set it aside; but when a judgment of the Circuit Court is modified by the Supreme Court it is certainly a new judgment with different provisions from the Circuit judgment. While such a judgment is the final judgment in the cause, it is difficult to see how it is merely the judgment of the Circuit Court. It is made, as in the case now under consideration, in the Supreme Court, and is made by an authority paramount to and which overrides the Circuit Court. This judgment of the Supreme Court is remitted, not to be reheard in, but to be enforced by, the Circuit Court according to law.

When a cause is heard only in the Circuit Court, that court has power in proper cases to reopen and rehear it. When a cause is heard in the Supreme Court, and before its jurisdiction ends by remitting its judgment to the Circuit Court the cause may be reheard in a proper case in this tribunal. But when its judgment is remitted to the court below, the Supreme Court loses control of the cause and the Circuit Court can only enforce it. There must be some end of litigation.

It may seem to be a hardship that in a case in which the Circuit judge thought there was a proper case for a rehearing, this court can give no relief. It must be remembered, however, that this court can only construe the law, and that it should be especially careful not to extend its control beyond the clear limits of its jurisdiction as prescribed by law. It is better that there should be cases of individual hardship than that the courts shall arbitrarily extend their jurisdiction to meet supposed necessities which may arise, if indeed this is such a case.

It is therefore ordered and adjudged that the judgment of the Circuit Court be affirmed and the appeal dismissed.