First National Bank of Hailey v. Lewis

Bartch, J.: This action was brought to recover upon a judgment rendered in Idaho. The case was tried, and judgment in the sum of $4,152.39 entered against the defendants, as executors of the will of J. D. Lewis, deceased. This judgment was afterwards set aside, and a new trial granted. Thereupon the plaintiff appealed to the supreme court, where it was held that the lower court erred in granting a new trial, and the case was remanded, with directions to the trial court to make certain amendments to the judgment, so as to indicate more clearly that it was against the respondents, as executors de son tort. 41 Pac. 509 712. A petition for a rebearing was filed, considered, and overruled, and then the trial court proceeded, and entered judgment in accordance with the mandate of the supreme court. From the judgment so modified and entered, the defendants prosecuted this appeal, which is now to be considered upon motion to dismiss, on the ground that it is an appeal from a judgment entered in accordance with the mandate of the appellate court, being a court of last resort. From an examination of the record in the former appeal in this case, it appears that all the material questions which we are now asked to consider on this appeal were deliberately determined by the supreme court on the former appeal, and again passed upon in disposing of the petition for a rehearing. We see nothing in the present record which warrants a reopening and reconsideration of the case. We do not think that the point in reference to the jurisdiction of the appellate court to make the order modifying or correcting the judgment is well taken. That court was the court of last resort in the case, and had the right to determine the question of jurisdiction. It was the exclusive judge of its own jurisdiction. State v. Waupacca County Bank, 20 Wis. 640; Bridge Co. v. Stewart, 3 How. 413. The power to modify judgments is granted to the appellate court by sections 3005, 3006, Comp. Laws Utah 1888. It is clear thart this is an appeal from a judgment entered precisely in accordance with the mandate of the supreme court, and comes within the doctrine announced in the case of Krantz v. Railway Co., 13 Utah 1, 43 Pac. 623, which we reaffirm; and, on the authority of that case, the motion to dismiss is sustained. The appeal is dismissed. ZaNe, C. J., concurs. Minee, J., did not sit in this cause.