Brandon v. West

• Decision Date: 31 December 1906
• Docket Number: 1,681.
• Citation: 88 P. 140,29 Nev. 135
• Parties: BRANDON v. WEST et al.
• Court: Nevada Supreme Court

88 P. 140

29 Nev. 135

BRANDON v. WEST et al.

No. 1,681.

Supreme Court of Nevada

December 31, 1906

Motion to set aside or modify the decision and order of this court made on petition for rehearing. Dismissed.

For opinion on petition for rehearing, see 85 P. 449. For opinion on original hearing, see 83 P. 327.

Fitzgerald C.J., dissenting.

NORCROSS J., concurs.

FITZGERALD C.J. (dissenting).

After the order denying respondents' motion for a rehearing in this case was made, but before the remittitur thereon went down, the counsel for respondents moved the court to reconsider its order and to modify its decision on the appeal, pointing out what counsel considered such grave errors in the decision and order and disastrous consequences therefrom resulting as to justify them in making said motion hence two questions arise for consideration at this time: (1) Has this court power to reconsider and change its order on a petition for a rehearing when, after its decision, but before remittitur goes down, it discovers that it has fallen into grave error of fact or law, or of both fact and law? (2) If the court has this power, did it in this case fall into such error?

On the first question I think the court has this power. Until the remittitur goes down, I think this court has full and complete control over its decisions, judgments, and orders. Otherwise mere inadvertence, oversight, or mistake might work grave disaster to litigants coming before it seeking justice. It is a constitutional court of final appellate jurisdiction. There is a maxim of the law that a good judge will not unnecessarily curb and limit his jurisdiction, but he will on the contrary, extend it to its utmost proper limits in order that he may reach justice. This court has power to make its own rules to govern its procedure and to establish its practice as it may deem to be wise and just, unless it is restrained and limited in a matter before it by its own rules previously established, or by legislative enactment, or by constitutional provisions. I know of no rule of this court, legislative enactment, or constitutional provision restraining or limiting the power of the court in this respect. In a proper case I think the court should not hesitate to exercise so salutary a power in the administration of distributive justice.

The second question is: Has the court fallen into error of sufficient gravity to warrant its exercise of this power? It seems to me that expressly in its original decisions, and impliedly in its order that counsel move to modify, the court did fall into error. It also seems to me to be, not only proper, but necessary, that the nature of those errors should be here briefly stated, so as to ascertain whether or not they be of magnitude sufficient to justify counsel in making their said motion, and the court in exercising the power in question. The errors, it seems to me, briefly stated, are as follows: (1) The original decision of this court in the case decrees a specific performance of a contract for the sale of personal property that has no special quality of value that could not be compensated for in damages, such as an heirloom etc. The personal property of which the court in this case made decree of specific performance of a sale was sand upon or in a certain piece of land. I can see nothing peculiar in the nature of such personal property that would warrant such a decree. If the respondents had made a breach of a contract to sell such sand to appellant, I can see no reason why money damage should not fully and adequately compensate appellant therefor. (2) The judgment which this court orders in the case, it seems to me, bears unduly hard on respondents. It decrees that respondents make conveyance of this sand to appellant. But (a) it does not decree how much sand shall be so conveyed, to what depth below the surface of the lane in which the sand exists, if any depth, the appellant shall have the right to take the sand; and (b) the decree does not state what time the appellant shall have in which to remove the sand from respondents' land. Shall appellant have whatever time he chooses in which to remove the sand? If so, then not only would respondents be under great hardship, but the public interest would suffer detriment. For the land in question, in contradistinction to the sand thereon could never be used by either party to this action. The appellant could not, of course, make any use...