Town of Underhill v. Town of Jericho

ROSS, C. J. This is a petition preferred to the supreme Court for the county of Chittenden at its January term, 1893, setting forth that the town of Jericho had a cause pending against the petitioner in the supreme court of that county at its January term, 1892, which was heard; that the cause had not been heard upon its merits in the county court; that the supreme court reversed the judgment of the county court and rendered judgment in chief against the petitioner, thereby depriving the petitioner of the right to a trial upon the merits of the cause; that the judgment so rendered was an error, or oversight, and upon proper hearing the court would allow the petitioner to plead over and try the cause upon its merits, inasmuch as the plea it had entered, and on which the court had passed, was a plea to the jurisdiction, and not a plea in abatement. The petitioner prays that the cause may be brought forward upon the docket and the mandate [185] corrected, or changed, so as to give the petitioner the right to try the case in the county court upon its merits. The mandate, or judgment order, remitted the cause to the county court for the assessment of damages. 64 Vt. 366. The argument of the counsel of the petitioner has been directed mostly to endeavoring to show that this court erroneously gave judgment in chief in favor of Jericho, on its plea. But before this court can reach that question it must determine whether it is or, on this proceeding, can be brought before it for determination. The cause came to this court on exceptions, which are legally equivalent to a writ of error. It was fully and regularly heard. The court then took a recess, and on reconvening the opinion of the court was read and the judge having the case inquired of the counsel what they claimed the judgment should be, whether in chief, as was rendered, or reversing and remanding the cause for the petitioner to plead to it on its merits. The counsel for the town of Jericho claimed that it was entitled to a judgment in chief. The court held the case to consider the point raised. Neither the counsel for the petitioner nor for Jericho furnished the court with any authorities upon the point inquired about. After examination and consideration the judgment ordered was entered and the cause remitted to the county court, where the case is now pending. Hence this court has not the case within its control to bring forward upon its docket. The true cause was regularly before this court at the January term, 1892. It was duly heard and considered. The judgment order was not procured by any concealment, misrepresentation or misinformation. It was, in no sense, an inadvertence. It was regularly entered, and the cause regularly remanded to the county court. The petition, in legal effect, is a motion to have the cause brought forward and reheard, and reaches only what rests in the records of this court. The state has no statute relating to the subject. The result is, the petition does not lay hold of [186] the original, cause, nor bring it within the reach of this court. When this court received the full and true bill of exceptions from the county court it had the case in hand for consideration. It gave the cause thus before it due hearing and consideration without being lead into any inadventure by concealment, misrepresentation or default by any one, or of any kind. It disposed of and regularly remanded the case to the county court. It thereby exhausted its jurisdiction thereof and has no power upon this petition certainly, .and probably none, without the aid of legislation, to recall the case from the county court, where it is now pending. Such is the reason of the premises, and such the decisions in regard to the jurisdiction of the appellate court, or court of error, over cases once before it, heard, considered, determined and remanded in due course to the trial court. In such a case the appellate court, or court of error, has exhausted its jurisdiction over the cause, although an error of judgment on the part of the court may have intervened. If its judgment order was not upon the case as shown by the records of the trial court; or, if the court of error failed to acquire jurisdiction of one of the parties through neglect to notify him, as required bylaw; or, if the judgment order issued erroneously through the misprison of its clerk; or, if it issued by inadventure, by reason of concealment, fraud, misrepresentation, misinformation, or other default, so that the jurisdiction of the court of error has not been exercised upon the real cause, or in due course, and the remittitur does not represent the true judgment of the court of error, properly and orderly obtained, the cause, notwithstanding the «erroneous remittitur received by the trial court, is still in the appellate court or court of error, and its jurisdiction thereon has not been exhausted. Legg v. Overbagh, 21 Am. Dec. 115 (4 Wend. 188), and note reviewing the cases. Lovett v. State of Florida, 16 L. R. Anno. 313. On the facts of this case this court, at its January term, 1892, fully, fairly [187] and orderly exercised and exhausted its jurisdiction over the cause, and cannot now, on this petition, at least, lay hold of and recall it. Whether, therefore-, the decision is erroneous, and if erroneous, whether, under the circumstances, this court could or ought to correct it, is not before us for consideration. These points, although fully presented in the petitioner’s brief, we have not considered. Petition dismissed with costs. Taft, J., did not sit. Start, J., doubting.