Moe v. Goodroad

WHITING, J. Appellants perfected an appeal herein on the 6th day of June, 1921. It coming to the attention of this court that the record upon such appeal had been settled on the 23d day of March, 1921, and that no brief had been filed or further proceedings taken, thus rendering the appellants in default, this court, on the 9th day of August, 1921, found that such appeal had been abandoned, and dismissed same. 'Remittitur was transmitted to the trial court on the 30th day of August, 1921. February 1, 1922, appellants procured an order to show cause why this court should not vacate its order of dismissal, and permit appellants to file briefs on appeal. It is upon the return of such order to show cause that this cause is now before us. [1] It is the established law of this jurisdiction that', when this court, in the absence of fraud perpetrated on the court, and of accident, mistake, or inadvertence on the part of the court, renders a judgment or makes a decision, and remits such judgment or decision to the court from which the appeal was taken, this court loses jurisdiction over said cause. Wallace v. Stutsman County, 6 Dak. 1, 50 N. W. 832; Dempsey v. Billinghurst, 8 S. D. 86, 65 N. W. 427. See, also, Hilmen v. Nygaard, 31 N. D. 419, 154 N. W. 529, Ann. Cas. 1917-A, 282; State v. Sund, 25 N. D. 59, 140 N. W. 716; Leese v. Clark, 20 Cal. 388; Thomas v. Thomas, 27 Okl. 784, 109 Pac. 825, 113 Pac. 1058, 35 L. R. A. [273] (,N. S.) 124, 133 Ann. Cas. 1912C, 713; Ott v. Boring, 131 Wis. 472, 110 N. W. 824, 111 N W. 833, 11 Ann. Cas. 857. [2] However, appellants contend that section 2378, R. C. 1919, is applicable to this court as it is to trial courts, and that therefore this court, like the circuit court, has the authority to vacate its judgment. Appellant cites the opinion in Baldwin v. Rogers, 28 Minn. 68, 9 N. W. 79, in support of such proposition. A reading of such opinion does not advise us as to whether the case had been remitted to the trial court when the motion to reinstate was made. We should have no hesitancy in holding that, if appellant, after the dismissal of the appeal herein but before the cause had been remitted, should have sought an order setting aside the order of dismissal, based upon a proper showing under section 2378, supra, this court might vacate such order of dismissal and grant the relief. The question before us is whether an appellate court, after it has functioned as such, and in the absence of fraud perpetrated upon the court or of mistake, accident, or inadvertence on the part of the court, has rendered its order or judgment and remitted the cause to the court from which it came, can vacate its order or judgment and, by so doing, reinvest itself with jurisdiction. We think the express provisions of statute provide the only method' by which this court can acquire appellate jurisdiction. Could it be possible that a circuit court, after it had remanded to a justice court a cause appealed to such circuit court, could, under said section 2378, vacate its judgment, reinvest itself with jurisdiction, and again function as an appellate court? The answer seems to us obvious; and we have been referred to no cases supporting appellants’ contention. The case now .before us illustrates well the evils that might result from any such construction of section 2378. A will contest was brought in county court; from the judgment of that court, appeal was taken to the circuit court; and then, from the judgment of the circuit court, the appeal to this court was taken. The remittitur of this court was transmitted to the circuit court: and then the judgment of that court was transmitted to the county court, wherein the probate proceedings have since continued. Endless confusion and uncertainty with accompanying injury to society would result from placing such a construction upon section 2378 as contended for by appellants. [274] The order to show cause is dismissed and relief prayed for denied.