Trench v. Strong

[92] By the Court, Lewis, J. This action was brought in the year 1863, to recover a portion of the mining ground now occupied by the Yellow Jacket Company, tried in that year, and a verdict rendered in favor of the defendants; a motion for a new trial was duly made, overruled, and an appeal taken to the Supreme Court of the Territory, and by it the order below was affirmed. From that judgment, affirming the order of the lower Court, the appellants took an appeal to the Supreme Court of the United States. But that Court dismissed the appeal upon the ground that an appeal from the judgment of the Territorial Supreme Court affirming an order refusing a new trial could not be reviewed by it. The remittitur is sent to this Court as the successor of the Territorial Supreme Court, and now, as it is-claimed that this Court has jurisdiction of the case, counsel for appellant asks permission to file a petition for rehearing, upon the appeal to the Territorial Supreme Court. This proceeding is certainly a very unusual one, although perhaps not entirely without precedent. We have, however, concluded that it Avould he mischievous in the extreme to sanction the practice of filing a second petition for rehearing in any cause whatever, at least that it should not be permitted except to correct a palpable error and grievous wrong; and that too only when the Judges allowing it are entirely familiar with the case and the decision which they are asked to reconsider. The present Judges of this Court know nothing of the merits of this action, nor of the grounds upon which the Territorial Supreme Court based its judgment. It would be unsatisfactory, to say the least, to grant a re-argument upon what might now be learned from the incomplete and imperfect records which were then kept of the proceedings of the Court. It is possible that some matter may have been presented to the consideration of that tribunal which the record here does not disclose, about which the present Court knows nothing, and which may have been fully sufficient to warrant the decision. This consideration alone' weighs heavily against the appellants in this application. It is better that an erroneous decision should stand than that none should be relied on as final. When a cause has been taken to the tribunal of last resort, and there disposed of, the person in [93] whose favor' the decision is rendered very naturally relies upon it as final, unless such decree directs'further proceedings. When the ordinary rules of procedure justify the conclusion that a decision is final, property is then acquired and disposed of upon that assumption, and the individuals immediately interested shape their actions accordingly, and the people generally accept it as the law which is to govern them in similar cases. Immediate mischief will usually flow from disturbing such decisions, and a feeling of uncertainty in the finality of all legal proceedings would very naturally pervade the community. Admitting the legal right of this Court to open up the decision of the Territorial Court, still the facts in the case would make the exercise of such right extremely improper, and perhaps result in injustice and hardship to many who have become interested in the property in controversy, under a. reasonable belief that the decision of the Territorial Supreme Court was final; for we find that a remittitur was sent to the loAver Court on the 24th day of July, A. D. 1863, and there filed. True, it may possibly have been issued without authority, and before the petition for rehearing had been' disposed of; however, as it was sent to the Court below, and there filed, as the remittitur in the cause, all persons examining the records had a .right to believe that the final decision of the Territorial Supreme Court had been made, and that no appeal had been taken from it. In such case, the most prudent person would hardly have extended his inquiries beyond the record in the Court below. Upon that record the defendants-’ interest in the property may have changed hands, improvements made and large sums of money expended, upon the assumption that the ease was disposed of. Under such circumstances, a case can hardly be imagined which would justify the granting of an application of this kind. It is claimedj however, that the paper sent to the lower Court by the Clerk of the Territorial Supreme Court was not a remittitur. Whether it was in proper form or not," there is no doubt but that it was intended as a remittitur. It was indorsed, and doubtless treated as such by all parties. But we see no material or.serious objection to the form or substance of the remittitur. It seems to embody everything which a remittitur should usually [94] contain; the' statement that the cause had been argued, taken under consideration bj the Court, that the opinion of the Court was delivered affirming’ the judgment of the lower Court, and then closing in this manner: “ Whereupon it is now considered, ordered, adjudged, and decreed by the Court here, that the judgment of the Court of the First Judicial District in and for Storey County, in the above entitled cause, be and the same is hereby affirmed, with costs.” No peculiar form or nice technical exactness is required in a remittitur. Its principal object is to fully notify the lower Court of the judgment of the appellate tribunal. That is done by the remittitur in this case. It is also argued that the remittitur should have no effect because improperly issued. But what evidence has this Court that the Clerk was not fully authorized to issue it when he did ? Simply this: it appears by the file marks that the remittitur was sent to the Court below on the 24th day of July, and that the petition for rehearing was not disposed of until the 1st day of August. The judges may nevertheless have concluded to refuse the rehearing long before their decision to that effect was filed; and themselves ordered the issuance of the remittitur. There appears nothing to indicate that it was issued without authority, except the fact that the remittitur bears a date six or seven days anterior to the time when the decision upon the petition for rehearing seems to have been filed. That alone isjiot sufficient,'under the circumstances of this case, to justify the conclusion that it was issued without authority. In view of all the peculiar circumstances of this case, it is evidently the duty of this Court to let the judgment rest. JOHNSON, J., having been consulted on the original suit, did not participate in this decision,.