Horton v. State ex rel. Hayden

• Decision Date: 20 November 1901
• Citation: 63 Neb. 34,88 N.W. 146
• Parties: HORTON ET AL. v. STATE EX REL. HAYDEN ET AL.
• Court: Nebraska Supreme Court

63 Neb. 34

88 N.W. 146

HORTON ET AL.

v.STATE EX REL. HAYDEN ET AL.

Supreme Court of Nebraska.

Nov. 20, 1901.

Syllabus by the Court.

1. When the judgment of a district court is reversed, a mandate is the proper and legal mode of communicating the judgment and directions of the supreme court to such district court.

2. The jurisdiction of the supreme court to alter or modify its judgments continues during the whole of the term at which its final judgment is rendered, unless its mandate is acted upon in the district court. But, when the mandate of the supreme court is acted upon and carried into effect by the district court, the power of the supreme court over its judgment is at an end.

3. In order to prevent conflict, a district court whose judgment has been reversed should defer action until the mandate of the supreme court is before it, although, where both parties proceed without objection, the irregularity in so doing without a mandate on file may not be taken advantage of thereafter.

4. When it is manifest on the face of the record that the court has acted irregularly and unadvisedly, it may, and should, so long as its jurisdiction over its own order continues, undo it as soon as the facts come to its notice.

5. The rule that the court has full power and control over its judgments and orders during the term at which they are rendered applies to an order of dismissal entered at the instance of a plaintiff.

6. The right of a plaintiff to dismiss his action is not absolute, in the sense that the court has no power over or discretion with respect to its exercise. Whenever justice to the court or its officers or to any of the parties requires imposition of terms or retention of the cause upon the docket, the court, in its discretion, may impose such terms or refuse to permit dismissal.

7. Such discretion depends upon the existence of rights which would be jeopardized by dismissal, not upon the manner in which the court may become cognizant of them, and is not conditioned upon some formal claim or assertion of them in the record.

8. Where a party to a cause has obtained money or property under or by virtue of a judgment which is afterwards reversed, the court has power to compel restitution by summary proceedings in that cause.

9. Such restitution is a matter of right, and does not depend upon the merits of the controversy between the parties.

10. Where the record shows that money has been collected or obtained under and by virtue of the judgment afterwards reversed, restitution should be awarded as of course. Where such fact does not clearly appear upon the record, but is made to appear aliunde, the proper procedure is by order to show cause why restitution should not be made.

Commissioners' opinion. Department No. 2. Error to district court, Douglas county; Dickinson, Judge.

Application by the state, on the relation of William Hayden and others, for a writ of mandamus against Richard S. Horton and others. From a judgment granting a dismissal, defendants bring error. Reversed.James W. Hamilton and Richard S. Horton, for plaintiffs in error.

Smyth & Smith and Geo. E. Pritchett, for defendants in error.

POUND, C.

This proceeding was brought to obtain a writ of mandamus commanding certain officers of the Greater America Exposition to draw, issue, and deliver to relators an unconditional warrant upon the treasurer of said corporation for the payment to them of the sum of $10,000. The district court allowed the writ. Error was taken to this court, which held that the proceedings below were unwarranted, and the writ improvidently allowed, reversed the judgment, and remanded the cause. Horton v. State, 60 Neb. 701, 84 N. W. 87. A motion for rehearing having been filed on behalf of relators, which was not disposed of until the opening of the January, 1901, term of this court, a mandate issued on January 28th. This mandate was not filed or docketed in the district court until March 23d. Two days before, on March 21st, the relators appeared in that court, and procured an order of dismissal. When the mandate was filed, this order was set aside ex parte, at the instance of defendant, on the ground that it had been rendered prematurely; and on the same day, March 23d, on motion of the defendant Horton, supported by an affidavit showing that $10,000 of the moneys of the corporation had been paid to, and obtained by, relators under and by virtue of said writ of mandamus, an order issued requiring relators to show cause, on or before March 30th, why restitution of said moneys and interest thereon should not be awarded. The relators, having been served with said order, appeared specially, and objected to the jurisdiction of the court. At the hearing, the district court held that it had jurisdiction to render the order of dismissal on March 21st, that it had no jurisdiction to set such order aside on March 23d, nor to enter the order to show cause on the same date, and sustained the objections. Error is prosecuted from this ruling.

The argument made on behalf of relators is that as soon as the cause was determined in this court, and a mandate issued, the district court was reinvested with jurisdiction, and might properly act without having the mandate before it; that the right of a plaintiff to dismiss, in the absence of some pleading, showing, or claim of the adverse party on file entitling the latter to relief, is absolute, and that the order of March 21st was made with full jurisdiction, giving effect to this absolute right of dismissal; that even if the order was prematurely made, and the court had the power to set it aside, in the absence of some application by the defendants for relief, on file at the time, it should not have done so, and hence, in any event, the final action of the court was right. We are unable to agree to these propositions, under the circumstances disclosed by the record. While it is true that the Code of Civil Procedure provides in express terms only for a special mandate, which is to issue where a judgment is reversed and a new judgment entered in the supreme court, it does not follow that mandates are abolished or rendered unnecessary in all other cases. Under various names, “mandate,” “remittitur,” or “procedendo,” such process from the appellate court to the lower tribunal is in general use in all common-law jurisdictions. Where a judgment is affirmed, indeed, the mandate has no office to perform, and may be dispensed with. State v. Sheldon, 26 Neb. 151, 42 N. W. 335. But where a judgment is reversed a mandate is the usual, and, it seems to us, the only, legal method of communicating the ruling of the one court to the other with authority. It is the judgment of this court which the lower court is to look to, not its opinion, and it must be obvious that some authentic and official notification of the judgment affords the only sure basis for further proceedings. This is furnished by the mandate, which is “the official mode of communicating the judgment of the appellate court to the lower court.” 13 Enc. Pl. & Prac. 837. Such, moreover, is the settled and recognized practice in this state. State v. Sheldon, 26 Neb. 151, 42 N. W. 335;State v. Omaha Nat. Bank, 60 Neb. 232, 82 N. W. 850. As between the opinion and such official statement of the judgment in a mandate, the district court must be guided by the latter. Merriam v. Gordon, 20 Neb. 405, 408, 30 N. W. 410. Hence we are not able to assent to the proposition advanced by counsel that, in the absence of an express statutory requirement of a mandate, “any way in which the court can be satisfied of the action of the supreme court will answer the purpose.” It has been held that, where no mandate is issued, the lower court will not act on a certified copy of the judgment of the appellate court. Navigation Co. v. Hertzberg, 26 Or. 216, 37 Pac. 1019. The statute recognizes a mandate as the proper legal mode of communication, and, assuming this, provides for a special mandate in certain special cases. The very use of the term “special mandate” implies that for ordinary cases there is to be a general mandate. The cases which have been cited as leading to a contrary conclusion are not inconsistent with this view, as we shall show in another connection.

The jurisdiction of the supreme court over its own judgments and orders is, in general, the same as that of any other court of record, and hence it may alter or modify such judgments or orders and correct its mandates accordingly at any time during the term at which they are rendered, unless its mandate has been filed and acted upon in the lower court prior to the end of the term. Bronson v. Schulten, 104 U. S. 410, 415. 26 L. Ed. 797;People v. Village of Nelliston, 79 N. Y. 638;Trowbridge v. Sickler, 48 Wis. 424, 428, 4 N. W. 563. Obviously there must be some point of time at which the jurisdiction of the one court ceases and that of the other court attaches, and, while the subject is not free from judicial conflict, we think the sounder rule draws the line at the time when the mandate is acted upon and carried into effect. Merriam v. Gordon, 20 Neb. 405, 30 N. W. 410; People v. Village of Nelliston, supra. But it may be observed that the weight of authority fixes the transfer of jurisdiction at the time when the mandate has been filed in the court below. Leese v. Clark, 20 Cal. 387; Zorn v. Lamar, 71 Ga. 85; King v. Ruckman, 22 N. J. Eq. 551; Whaley v. Bank, 5 Rich. 262; Ward v. Insurance Co., 12 Wash. 631, 42 Pac. 119. And such rule would be equally consistent with the view we take of this case. Counsel in contending that the issuance of a mandate terminates the jurisdiction of the appellate court, and gives jurisdiction to the lower court, point out that the practice in altering or modifying a judgment is to recall the mandate. But we think the object of this is to stay action thereon while the appellate court is considering what modification shall be made, and that the acknowledged...