Hall v. Bank Of Va.

• Decision Date: 09 July 1879
• Citation: 15 W.Va. 323
• Court: West Virginia Supreme Court
• Parties: Hall & Smith v. Bank of Virginia. and Renick v. Ludington et al.

15 W.Va. 323

Hall & Smith

v.Bank of Virginia.andRenick

v.Ludington et al.

Supreme Court of Appeals of West Virginia.

Decided July 9, 1879.

1.A case decided at one term of the Supreme Court of Appeals, at which no motion or petition is made or filed to rehear it, cannot be reheard by that Court upon its merits for the correction of errors of judgment in the final decree or judgment of the Appellate Court at the former term.

2. Chapter 52 of the Acts of the Legislature of West Virginia, approved March 8, 1879, does not authorize the said Court to review and rehear any cases decided by said Court at the special term thereof in the months of October, November and December, 1878, for the correction of errors of judgment in the final decrees or judgments of said Court, but only for the correction of clerical errors therein.

3. The clause in the Constitution requiring the Supreme Court of Appeals to '' decide every point arising upon the record, aud give its reasons therefor in writing" is directory and does not affect the common law rule of res judicata. Henry et al. v. Davis, 13 W. Va.

4. In so far as there is an apparent inconsistency or conflict in the case of Renick v. Ludington et al. between the decree of the 21st day of June, 1876, and that of the 25th day of June, 1877, the latter should be taken as a modification of the former by the court below, and both decrees being before the Appellate Court at the same time and considered and acted upon by the Appellate Court together, the Appellate Court, in so far as it affirmed said decrees, affirmed the former as modified by the latter.

Two petitions for a rehearing by this Court, one by the Bank of Virginia and the other by T. H. Ludington and others, in two causes in one of which John Hall and B. H. Smith were plaintiffs, and the President, Directors * and Company of the Bank of Virginia and others were defendants, and in the other of which B. F. Renick was plaintiff and S. C. Ludington and others were defendants.

The facts of the case fully apearin the opinion of the Court. W. W. Gordon presented the petition for the Bank of Virginia.

A. C. Snyder presented the petition for S. C. Ludington et al.

Haymond, Judge, delivered the opinion of the Court:

The decision in the case of Hall & Smith v. The Bank of Virginia, in which a rehearing is prayed by the said bank was made by this court at a special term thereof continued and held on the 21st day of December, 1878 j and the decision in the case of llenick v. Ludington et al. was made by this court at the same special term and on the 14th day of December, 1878, thereof. The Legislature on the 7th day of March, 1879, passed an act entitled: "An act providing for reviews and rehearings in the Supreme Court of Appeals of causes decided at the special term held in the city of Wheeling in the months of October, November and December, 1878," which was approved March 8, 1879, which is in these words, viz: "Be it enacted by the Legislature of West Virginia:

"1. That the Supreme Court of Appeals, at the regular term to be held in the city of Wheeling in June, 1879, may review and rehear any cases decided by said court at the special term held in the city of Wheeling in the months of October, November and December, 1878, so far as to allow the correction of any clerical error in any decree or judgment pronounced by said court, or when the court, on its own motion, may desire to rehear and correct such decree or judgment. But no argument, either written, printed or oral shall be heard unless requested by the Court." Since the passage of said act, and during the present term of this Court said petitions have been presented to this Court. The petitioner in the first named cause, in speaking of said act, says: "If it commanded the Court to grant a rehearing, it would be justly subject to the imputed objection, because whether or not a new hearing should be allowed is always a judicial question; but such is not the effect of the act, A rule of law prescribes that a cause shall not be reopened after the end of the term at which it was decided. The act merely repeals that rule of law, and thereby leaves the court at liberty to rehear, if in its judicial discretion it sees fit to do so." Counsel for the petitioners in the case of Renick v. Ludington et al. in speaking of this rule says, among other things:" But we claim that this rule of law does not apply to an Appellate Court, a court of last resort. Neither reason, law nor the practice of the courts justifies such a conclusion. It is conceded that by analogy to the rule in the circuit courts a very general, though erroneous impression has obtained in the legal profession, that the Court of Appeals has no power to rehear cases after the term. This impression has no doubt been much strengthened by the practice of the English courts. But the practice in these courts is founded on the statute of 11 Hen. IV, ch. 3, which in terms prohibits all courts from any order in cases determined after the term has ended," &c. Thus it seems that the counsel in the one case maintain that the Supreme Court of Appeals of this State has no inherent power to reopen its judgments and decrees after the end of the term, independent of the statute; and the counsel in the other case think the Court has such power independent of the statute.

Whether this Court has the inherent power to reopen its judgments and decrees after the end of the term independent of the statute, in so far as to correct simple clerical errors therein, I shall not stop here to consider, as I do not think that question fairly arises in these cases as presented by the petitions. The errors complained of in the petitions are not clerical, but if errors at all, are errors in the judgment of this Court. I shall first proceed to enquire whether the Court has the inherent power, independent of the said statute, to review, rehear and reopen its judgments or decrees for errors of judgment, even where such errors in fact exist.

In the case of The Commonwealth v. Beaumarehais, 3 Call 107, that portion of the syllabus which relates to the subject under consideration is: "When an interlocutory decree is entered at one term of the Court of Appeals it may be set aside at a subsequent term." It seems in this case that at a term of the Court of Appeals of Virginia held in November, 1801, the judges were all agreed, that the decree of the court below, as it stood, was erroneous, but equally divided in opinion, whether the contract should be settled by a scale of four to one, instead of the statutory scale of five for one. A decree was entered, stating that by the unanimous opinion of the court, the decree of the high court of chancery was reversed; and, on account of the division among the judges as to the scale, that no further decree could be made, as the case was not provided for by the act of Assembly. At a subsequent term held in May, 1803, the court desired it to be argued, whether under the act of Assembly relative to cases where the court is divided in opinion (May, 1779, c. 22, 10 Stat. Larg. 92) the decree ought not to have been affirmed for the balance due according to the scale of four for one, agreeably to the opinion of the two judges, who thought that scale ought to have been adopted. Afterwards on the 10th day of May, 1803, the court reviewed the decree of November, 1801. "1. Holding that, on the equal division of thejudges in the partial affirmance of the decree, it ought to have been affirmed, as far as the two judges thought it just, in like manner as if the decision had been on a question of a total affirmance or reversal. 2d. That the court are not precluded from correcting the mistake in the former entry, since the record remains in court, and the cause undecided. It would seem strange indeed, that when we are constituted to correct the errors of other courts, we should not have power to set right our own mistakes, in the course of proceedings in a cause yet pending." See p.-151.

It seems clear to me that the judges, when they made their final decision in the cause, regarded the case as still pending in that court and not finally decided by them.

In the case of the Bank of Virginia v. Craig, 6 Leigh 399, 439, the syllabus on this subject is: "The court cannot examine the propriety of a decree made at a former term inter partes, nor set aside such decree of a former term, on the ground that it decided matter's coram non judiee at the time." It appears that this case was decided in May, 1835; and afterwards, in April, 1836, Walter Jones moved the court to set aside the decree for several apparently strong reasons. Jones, Stanard and Johnson were the counsel who argued the motion, but the court on argument and consideration overruled Jones's motion, "'on the ground that it could not now set aside the decree entered at the former term, whether it was prematurely entered, or whether it was objectionable on its merits or not."

In the case of Toivner v. Lane's adm'r, 9 Leigh 262, the syllabus is:" Upon a petition for a rehearing of a cause in this Court, at a term subsequent to that at which the Court has entered a decree, but before that decree has been certified to the court below, on the ground that the decree was founded on a mistake in point of fact, the question was whether it was in the power of the Court to allow the rehearing; and upon this questijn four judges present were equally divided in opinion.'' In this case Judge Parker says at page 278: "It is just and expedient that there should be some termination to litigation. Particular cases of hardship must yield to general rules of convenience. We must fix some period at which cases shall be considered as finally ended, or this Court will be overwhelmed with applications for rehearing, and parties will be kept in continual uncertainty ol their rights. Fix on any we may, individual injustice may be done, but upon the whole the public good will be promoted, by avoiding the...