Henderson v. Dreyfus.

• Decision Date: 30 June 1920
• Docket Number: No. 2166.,2166.
• Citation: 26 N.M. 262,191 P. 455
• Court: New Mexico Supreme Court
• Parties: HENDERSON ET AL.v.DREYFUS.

26 N.M. 262

191 P. 455

HENDERSON ET AL.

v.DREYFUS.

No. 2166.

Supreme Court of New Mexico.

June 30, 1920.

Syllabus by the Court.

An appellant cannot, as a matter of right, dismiss an appeal. Such dismissal may be had only by leave of court.

The Supreme Court of the state of New Mexico, under the Constitution, holds one term of court each year, commencing on the second Wednesday in January, and such term continues until the beginning of the next succeeding term.

The power of the court over its judgment during the entire term at which they are rendered is unlimited, and the court may, during such term, without notice to the parties, vacate, modify, or set aside its judgments.

Appeal from District Court, Valencia County; Mechem, Judge.

Action by Henry Dreyfus against the New Mexican Printing Company and Ralph M. Henderson. Directed verdict for Cutting and verdict for plaintiff for $35,000 against the New Mexican Printing Company, its motion for new trial granted unless plaintiff remitted the verdict in excess of $10,000, which remittitur was filed, and judgment against the New Mexican Printing Company in that sum, and Ralph M. Henderson its receiver brings error. After an affirmance the appeal was dismissed and the opinion withdrawn, but subsequently the case was reinstated. On motion to vacate order of reinstatement. Motion denied.

The power of the court over its judgment during the entire term at which they are rendered is unlimited, and the court may during such term without notice to the parties, modify its judgments.

Lorion C. Collins, of Santa Fé, for plaintiffs in error.

ROBERTS, J.

A judgment was rendered against the New Mexican Printing Company in the district court of Valencia county for $10,000 in an action of libel instituted by appellee Dreyfus. Afterwards the printing company became insolvent, and Ralph M. Henderson was appointed receiver and prosecuted the appeal. On the 8th day of May, 1919, an opinion was filed by this court affirming the judgment of the trial court. For a full statement of the facts and the opinion, see 191 Pac. 442.

Various extensions of time to file a motion for rehearing were granted plaintiff in error, and the case was pending upon leave to file such motion, when, on the 22d day of October, 1919, upon stipulation of counsel for the respective parties, and at the earnest solicitation of counsel for plaintiff in error, this court entered an order dismissing the appeal and withdrawing the opinion from the files. On the next day there appeared in the Santa Fé New Mexican, a daily newspaper published and controlled by the same parties who were managing and directing its policies at the time of the publication of the articles which gave rise to the present action, an article with large and conspicuous headlines which gave an incorrect and misleading account of the reasons which prompted this court to withdraw its opinion and dismiss the action. The dismissal of the appeal and the withdrawal of the opinion, as stated, were done upon the earnest solicitation of counsel for plaintiff in error and as an act of grace extended to such party. While it is true the parties had stipulated that the appeal might be dismissed and the opinion withdrawn, they, of course, had no control over the opinion or the judgment after it had been rendered, save the right to enter satisfaction thereof. The article, published the next day by the newspaper referred to, gave out the false impression that the opinion handed down was erroneous, was a one-judge opinion, and was withdrawn by the court of its own motion; that the newspaper had won a great victory, and the article was calculated to, and did, place this court in a false position. Subsequently both counsel who appeared for plaintiff in error in the negotiations leading up to the dismissal of the appeal and the withdrawal of the opinion--both of whom are gentlemen of the highest personal and professional character--appeared before the court and disclaimed any knowledge of the intention to publish such an article, and withdrew from further representation of plaintiff in error.

On the 24th day of October, 1919, this court, upon its own motion and without notice to any of the parties, entered the following order:

“For reasons satisfactory to the court, the court now, of its own motion, sets aside the order heretofore entered in this cause, on, to wit, the 22d day of October, 1919, withdrawing the opinion heretofore filed on the 8th day of May, 1919, and dismissing the writ of error at the costs of plaintiffs in error, and

It is ordered that said cause be restored to the docket of this court, and the opinion so withdrawn from the files be restored to the files as the opinion of this court in said cause, and that the plaintiff in error be given 10 days' time within which to file a motion for rehearing.”

Thereafter, and prior to the expiration of the January, 1919, term of this court, plaintiff in error filed a motion to vacate said order, which stated grounds as follows:

“First. That said order of, to wit, October 24, 1919, and the proceedings of the court in making said order, are void and of no effect, inasmuch as the same are and were among other things, beyond the power, authority and jurisdiction of the court.

And for further grounds of their motion and as further objections to said order and proceedings, and also as reasons supporting the present motion and each and every ground and point thereof, they further set out, allege and show to the court:

Second. That said order and proceedings were made and had sua sponte, and without motion, demand or request of any party litigant herein or of any one authorized to initiate or apply for said proceeding or order.

Third. That from and after the making of its said order of October 22, 1919, this court became, was, and ever since has remained, without jurisdiction to make said order or to undertake said proceedings.

Fourth. That said opinion so written had not become a final opinion of the court and should not so appear on its records or be published as an opinion of the court at the cost of the taxpayers or otherwise, and could not be reinstated after being withdrawn as aforesaid.

Fifth. That said opinion, being withdrawn as aforesaid, became of no virtue nor effect, and that said cause having been terminated by the action of the parties thereto there was no pending cause between them in which an opinion could or should be filed.

Sixth. That said order and proceedings were not made or had to correct any clerical or other error or any inadvertence or mistake, but that the order of, to wit, October 22, 1919, duly and properly expressed the decision and intent of the court and duly and properly carried out the stipulation and agreement of the parties and fixed the rights and status thereof in accordance therewith and as they were lawfully entitled to have them fixed and remain and that the court could not lawfully place them again in the position of litigants.

Seventh. That said order and proceedings were made and had without notice to these movants and without opportunity to be heard wherefore, as well as for all of the reasons set out above, movants were deprived of liberty and property without due process of law and in violation of the provisions of the fifth amendment to the Constitution of the United States of America in that behalf provided, and in violation of the provisions of section 1 of the fourteenth amendment to the Constitution of the United States of America in that behalf provided, and in violation of the provisions of section 4 of article 2 of the Constitution of the state of New Mexico, providing that all persons have an inherent and inalienable right of enjoying and defending life and liberty, of acquiring, possessing and protecting property and of seeking and obtaining safety and happiness, and of section 18 of article 2 of the Constitution of the state of New Mexico, providing that no person shall be deprived of liberty or property without due process of law nor shall any person be denied the equal protection of the laws, and especially and particularly because under and by virtue of the said constitutional provisions and each of them, all persons are entitled to discontinue, cease and determine litigation pending between them and set their controversies at rest not only in fact, but also upon the records of the court, upon such terms and conditions as they may stipulate, subject only to such approval and control of the courts as may be necessary or requisite (if any) for their protection and for the protection of their jurisdiction, prerogatives and rights, which approval and consent was in the instant case duly and fully had and given and all such protection fully afforded by the said order of October 22d, 1919, and for the proceedings upon which same was founded, to which reference has heretofore been made, after which jurisdiction of this Honorable court in said matter ceased and determined and thereafter it became and ever since has remained without jurisdiction or power to make the said order of, to wit, October 22, 1919, or to take the proceedings upon which the same was based.”

Plaintiff in error does not here question the propriety of the court's action, but stands solely upon the proposition that the court had lost jurisdiction of the case and the parties and had no further control over its judgment; hence further attention need not be given to the reasons which prompted the action taken.

The motion was argued by plaintiff in error under two propositions of law which were stated as follows:

“(1) The parties had a right to dismiss the appeal, especially with the consent and approval of the court, and after such dismissal the court had no jurisdiction of the case.

(2) The order of...