Youmans v. Hanna

Per Curiam:. By an opinion of this court filed December 2, 1916 (35 N. D. 479, 160 N. W. 705, 161 N. W. 797, Ann. Cas. 1917E, 263), this court affirmed a judgment in favor of the defendants. Plaintiff filed a petition for rehearing on December 22, 1916, and on December 28, 1916i, an order was entered denying a rehearing. The remittitur was thereupon transmitted to, and judgment entered thereon in, the district court. On January 2, 1917, the plaintiff filed a mo [537] tion to vacate the order denying a rehearing. Such motion was based on the grounds: “That Judges Fisk, Burke, and Goss participated in the deliberations of the court and the decision denying the application [for a rehearing], and were not judges of this court at said time, their term of office having expired upon the first Monday in December of the year 1916, and the said three persons constituting a majority of those assuming to act' as the supreme court of this state, and being without legal right or authority to so act, the order denying the' said motion was without authority of law and void. ‘That the said order amounts in effect to a complete denial of justice in the above- entitled action, no fair hearing upon the merits having ever been allowed in this action in this court.’ ” 35 N. D. 514. Upon the hearing of that motion Judges Birdzell and Grace regarded themselves to be disqualified, as the questions presented involved their tenure of office. But while the same condition existed with respect to Judge Robinson, he did not deem himself to be disqualified, and signified his intention to sit as a member of this court. District Judges J. M. Hanley, of the eleventh district, and A. T. Cole, of the third district, were thereupon duly called in and requested to sit in the place of Judges Birdzell and Grace. The application to recall the remittitur and reconsider the case was fully argued before the court, as thus constituted. And in the opinion prepared by District Judge Cole this court held that the decision and order participated in by Judges Fisk, Burke, and Goss were, in fact, the decision and order respectively of this court, and consequently valid. And this court further held that when this court has entered a final order in a cause brought to it on appeal, and the remittitur has been transmitted to, and judgment entered therein, the court below, the supreme court loses jurisdiction to recall the remittitur and reinstate the cause, unless the order directing the issuance of the remittitur was based on fraud or mistake of fact. 35 N. D. 481, 160 N. W. 705, 161 N. W. 797, Ann. Cas. 1917E, 263. It may be mentioned that the latter principle was merely reaffirmed, as it had been formerly announced in at least two decisions of this court (see State v. Lund, 25 N. D. 59, 62, 140 N. W. 716; Hileman v. Nygaard, 31 N. D. 419, 154 N. W. 529, Ann. Cas. 1917A, 282). The principle was subsequently reaffirmed by this court in Patterson Land Co. v. Lynn, 36 N. D. 341, 162 N. W. 702. The rule as thus settled has the [538] support of the overwhelmng weight of judicial authority. See note to Hileman v. Nygaard, Ann. Cas. 1917A, commencing at page 284. Plaintiff thereafter filed what is denominated a “motion for rehearing.” It is somewhat difficult to understand the exact character or purpose of the motion. It does not comply with the rules relating to petitions for rehearing. Neither does the language used indicate an intention to petition for a rehearing of the motion to recall the remittitur. It appears rather to be the intention to make a new motion for a reargument and reconsideration of the cause on the merits thereof. In other words, we are asked to set aside or ignore the original decision, the order denying the rehearing, and the order denying the motion to recall the remittitur. It is not contended in the moving papers, or at all, that the order denying a rehearing was entered, or the remittitur transmitted, through inadvertence or mistake, but on the contrary it is assumed that the order was entered and the remittitur transmitted as the deliberate act of the court as then constituted. Neither is it contended that the decision and order entered on March 15, 1917, denying the application to vacate the order denying a rehearing, was entered through inadvertence or mistake. As disclosed by the former opinions in this litigation, this cause is no longer pending in this court. Manifestly there could be no rehearing on the merits of the cause, until the remittitur had been recalled. This court has already held that it is without jurisdiction to recall the remittitur, and that it has lost jurisdiction over the cause itself. A motion for a reconsideration of the merits of this case is, therefore, manifestly controlled and decided by the decision on the former motion to recall the remittitur, as well as by the former decision of this court in Patterson Land Co. v. Lynn, 36 N. D. 341, 161 N. W. 702. What is said in those decisions is equally applicable here. It is also clear that the decision of this court on the former motion to recall the remittitur is res judicata, as to the matters determined in that decision. We are, therefore, agreed that if the purported motion be considered as a petition for rehearing, it should be denied; and if it be considered as a motion for rehearing of the cause on its merits, it presents no question which this court has jurisdiction to consider, and cannot be entertained, as the cause in which the motion is made is no longer pending. The motion is denied.