Desportes v. Hunter

The opinion of the Court was delivered by

Mr. Chief Justice McIvER.

This was a petition, entitled as above, addressed to this Court in the exercise of its original jurisdiction, which appears to be signed by J. R. Thomas, O. W. Buchanan, H. A. Gaillard, and Cyrus Wm. Hunter, and also by Ragsdale & Ragsdale, as attorneys for petitioners, praying that a writ of certiorari may be issued, requiring that the record in the cases mentioned in the title may be brought before this Court, in order that certain alleged errors in the decision of this Court, rendered on the 16th day of July, 1896, which it is claimed said record will disclose, may be corrected. The only papers which were submitted to us at the hearing of this application, were the petition, a copy of which should be incorporated in the report of this case, and a draft of a proposed order requiring Richard S. DesPortes and A. F. Ruff “to show cause at the next ensuing term of this Court, upon the call of the calendar for the Sixth Circuit, why the writ of certiorari should not issue to the clerk of court for Fairfield County, requiring the said clerk to certify the records in the above stated causes agreeably to the prayer of the said petition, and for such other and further relief as to the Court may seem just.”

On hearing the petition and the motion for a rule to show cause, an order was entered, on the 8th. day of June, 1897, refusing the motion, and stating that the reasons for the conclusion reached b}7 the Court would be stated in an opinion, thereafter to be filed. These reasons we now propose to state. Ordinarily, a motion for a rule to show cause is very much a matter of course, only requiring such a prima facie showing as is sufficient to show that there may be merit in the application. But this application being of a very unusual character, this Court felt it to be their duty to look into the records of this Court in the cases to which the petition refers, before taking any action in the matter. These records show that the two cases were actions for the recovery of real estate, both depending upon, practically, the same facts, and involving the same principles of law, and jury trial being waived, they were both heard and determined by his Honor, Judge Aldrich, who, in an elaborate decree, rendered judgment in favor of the plaintiffs in both of said cases. From these judgments the defendant, A. F. Ruff, appealed, and this Court, after full and careful consideration, rendered its unanimous decision, “that the judgment of the Circuit Court in each of the cases mentioned in the title of this opinion be reversed, and that the complaints in each of said cases be dismissed” (see Hunter v. Rttff, and Buchanan v. Same, 47 S. C., 525). The plaintiffs being dissatisfied with this judgment, applied for and obtained an order for a stay of remittitur, for the purpose of enabling them to file a petition for rehearing, which was accordingly done, and this Court, after mature consideration, dismissed said petition, and ordered that the stay of remittitur previously granted be revoked. In pursuance of this- order, the remittitur was sent down to the Circuit Court by the clerk of this Court, in accordance with its rules and practice, on the 28th day of November, 1896, and this Court thereby lost jurisdiction of these cases, ás has been held in numerous cases. This being the condition of these cases, it seems to- us that the application which we are called upon to consider is nothing more than an effort to obtain from this Court a review of its former decisions, solemnly rendered, and reaffirmed by the dismissal of the petition for rehearing. We know of no precedent or authority for such a proceeding, and none has been suggested to us.

Again, one of the avowed purposes of the writ of certio-rari asked for is to bring up the record of these cases; but, so far as we can perceive, all of such record necessary to raise the questions suggested in the petition was before this Court when the cases were originally heard here, and there is no allegation or specification that any portion of such record was missing. Besides, under the rules and well settled practice of this Court, when the “Case” for appeal was prepared for argument, the petitioners had the right to have the whole, or at least such portions of the said record as were -necessary to a proper understanding of the points in this case incorporated in the “Case” as prepared for argument here; and having failed to exercise such right at the proper time, it is too late now to claim any such right. But, as we have said, we do not see that any portion of the record was omitted, which was necessary to a full understanding of all the points raised, as well as the constitutional questions now sought to be raised. The case was heard on an agreed statement of facts and certain records — the order for judgment by his Honor, Judge Kershaw, and the papers in said judgment roll — the proceedings before his Honor, Judge Fraser, to set aside said judgment, and his order thereon, were all set out in the “Case” as prepared for argument here, and there is no suggestion in the petition of any omission. Indeed, every question now suggested in the petition was either raised or could and should have been raised at the hearing of the appeal. For while the constitutional questions suggested in the petition were not formally raised or argued, yet the Rules of this Court prescribe an easy mode by which such questions could, and, therefore, should, have been made, by giving notice that this Court would be asked to sustain the judgments appealed from upon such constitutional grounds; and the parties having failed to avail themselves of the mode thus provided at the proper time, and in the prescribed manner, certainly have no ground upon which this' Court can be asked to repair their own omission by a writ of certiorari, or by any other proceeding recognized by the rules and practice of this Court.

It was, therefore, so apparent that there was no foundation whatever for such a proceeding as this — practically, an effort to obtain from this Court a review of its previous decision in a mode not recognized by law — that the Court felt no hesitation in granting the order above mentioned, refusing the motion for a rule to show cause.