In re Brown's Guardianship

• Citation: 6 Wn.2d 215,107 P.2d 1104
• Decision Date: 19 November 1940
• Docket Number: 27713.
• Court: United States State Supreme Court of Washington
• Parties: In re BROWN'S GUARDIANSHIP.

107 P.2d 1104

6 Wn.2d 215

In re BROWN'S GUARDIANSHIP.

No. 27713.

Supreme Court of Washington, En Banc.

November 19, 1940

On hearing for a motion to withdraw a prior opinion of a department of the Supreme Court on an appeal from an order of the superior court, or defer hearing on petition for rehearing, and respondent's motion to be relieved of answering petition for rehearing.

Motion to withdraw departmental opinion denied, and appeal dismissed.

For former opinion, see 101 P.2d 1003.

MILLARD J., BLAKE, C.J., and SIMPSON, J., dissenting.

Appeal from Superior Court, Yakima County; Dolph Barnett, judge.

Allen Froude, & Hilen and Rummens & Griffin, all of Seattle, and P.J. Gallagher and George B. Guthrie, both of Portland, Or for appellant.

Preston, Thorgrimson & Turner, of Seattle, for a surety company, United States Fidelity & Guaranty Co.

Bonsted & Nichoson, of Yakima, and Poe, Falknor, Emory & Howe, of Seattle, for respondent.

BEALS Justice.

On appeal from an order of the superior court for Yakima county, approving the final account of the guardian of a minor, by an opinion of a department of this court, the order was affirmed, as modified. In re Estate of Fred R. Brown, 101 P.2d 1003. The opinion of this court directed that certain allowances be made by way of compensation to the guardian for services and for compensation to the guardian's attorneys. A petition for a rehearing of the matter En Banc was seasonably filed by the appellant, and thereafter this court directed counsel for respondents to answer the petition. While the matter was thus pending Before this court, all controversies involved in the appeal were fully settled by the joint acts of all the parties concerned, and this fact having been called to the attention of this court, appellant has moved that the order directing respondents' counsel to answer appellant's petition for rehearing be vacated, and that an order dismissing the appeal be entered. Appellant also asks that the opinion of the court affirming the order, as modified, be withdrawn, and as an alternative, moves that consideration of the petition for rehearing be deferred until the hearing of a companion case, which has not yet been determined by this court. Respondents agree that they should be relieved from the burden of answering appellant's petition for rehearing, but contend that appellant's motion for the withdrawal of the opinion filed should be denied.

By the actions of the parties in voluntarily compromising and settling their disputes, this litigation has been terminated. No further rights or claims of any of the parties remain to be adjudicated, and as to them all questions involved have become moot.

By Rem.Rev.Stat. § 10, it is provided that such a decision of a department of this court as was rendered in the case at bar '* * * shall not become final until thirty days after the filing thereof, during which period a petition for rehearing, or for a hearing en banc, may be filed, the filing of either of which, except as hereinafter otherwise provided, shall have the effect of suspending such decision until the same shall have been disposed of. If no such petition be filed the decision of a department shall become final thirty days from the date of its filing, unless during such thirty-day period an order for a hearing en banc shall have been made * * *. The effect of granting a petition for a rehearing, or of ordering a cause once decided by department to be heard en band, shall be to vacate and set aside the decision. Whenever a decision shall become final, as herein provided, a judgment shall issue thereon.'

In this statute the word decision is evidently used as synonymous with opinion.

The question here presented concerns the procedure to be followed in the rather unusual situation above narrated.

In the case of Dishman v. Whitney, 121 Wash. 157, 209 P. 12, 29 A.L.R. 460, a departmental opinion was filed, affirming the judgment appealed from, which had been rendered in favor of the plaintiff. After the filing of the opinion, a petition for rehearing En Banc was filed and granted, but Before the day fixed for the rehearing, the parties entered into a stipulation reciting that the judgment had been fully settled and satisfied, and that the appeal might be dismissed without costs. Thereafter, by a per curiam opinion (124 Wash. 697, 215 P. 71, 72), this court called attention to a slightly inaccurate statement in the departmental opinion, the per curiam opinion concluding with the following sentence: 'By filing this brief memorandum it is not the intention either to approve or disapprove the department opinion except in so far as that opinion was not accurate in its discussion of the case mentioned.' Later the appeal was, by order of this court, dismissed.

In the case of Nettleship v. Shipman, 161 Wash. 292, 296 P. 1056, 1058, referring to the opinion of this court in the Dishman case, appears the following: 'After the filing of the decision, a rehearing was granted, and, pending reargument of the case, the litigation was terminated by stipulation of the parties. In an En Banc OPINION (124 Wash. 697, 215 P. 71), attention was called to the fact that the reference to the holding of the court in the case of Buckley v. Harkens [114 Wash. 468, 195 P. 250] was not, in all respects accurate, but, as the action had terminated, the departmental opinion was neither approved or disapproved, and the same still stands in that rather anomalous situation, as the opinion, not of the court, but of the judges who signed the same.'

In the case of Mitchell v. Maytag-Pacific-Intermountain Co., 184 Wash. 342, 51 P.2d 393, 396, the Dishman case was again referred to as follows: 'Appellant next cites the opinion filed in the case of Dishman v. Whitney, 121 Wash. 157, 209 P. 12, 29 A.L.R. 460. This opinion, as published, never became a decision of this court, and, for reasons stated by the court in the case of Nettleship v. Shipman, 161 Wash. 292, 296 P. 1056, the opinion is not authority. The reasoning of the opinion, based upon the facts as stated, may, of course, be used as a basis for argument, but the opinion, not constituting a decision of this court, is not authoritative.'

In the case of Bourus v. Hagen, 192 Wash. 588, 74 P.2d 205, 207, we referred to the case in the following language: 'Appellant also stresses the case of Dishman v. Whitney, 121 Wash. 157, 209 P. 12, 29 A.L.R. 460. By reference to [Dishman v. Whitney], 124 Wash. 697, 215 P. 71, it will be found that the force of that case as authority is lost through the fact that a petition for rehearing was granted and the case was settled without being heard En Banc.'

In the case of Hutchings v. Fanshier, 132 Wash. 5, 231 P. 14, a departmental opinion was filed, reversing, on plaintiff's appeal, the judgment of the superior court in favor of defendants. After the filing of the departmental opinion, a petition for rehearing was filed and by the court granted, but prior to the date fixed for the rehearing, the parties filed in this court a stipulation reciting a settlement of the litigation, and agreeing that the appeal be dismissed, and that this court remit the cause to the superior court, with directions to dismiss the action with prejudice and without costs. By a per curiam opinion (134 Wash. 704, 236 P. 119), this court, after reciting the facts above stated, in accordance with the terms of the stipulation, dismissed the appeal, with directions to the trial court to dismiss the action, as provided in the stipulation of the parties.

In the Hutchings and Dishman cases, petitions for rehearing having been granted, the departmental opinions were 'vacated', as provided by the statute above quoted. In the case at bar, the opinion was suspended by the filing of the petition for a rehearing. In neither instance did the opinion ever become final; the moment for the entry of a judgment by this court never arrived. In so far as the questions here presented are concerned, whether an opinion be vacated or suspended, the result is the same.

In the case at bar, the petition for rehearing was not granted, nor have respondents filed their answer thereto. In 7 Cal.Jur. 647, title 'Courts', § 49, is found the following: 'There is a wide difference between 'decisions' and 'opinions.' The decision of a court is its judgment; the opinion is only the reasons given for that judgment. * * * The judgment or decision is entered of record, and can be changed only through a regular application to the court, upon a petition for a rehearing or a modification. The opinion, on the other hand, is the property of the judges, and subject to their revision, correction and modification in any particular deemed advisable until, with the approbation of the writer, it is transcribed in the records, after which it ceases to be the subject of change. It then becomes like a judgment record, and is beyond the interference of the judges, except through regular proceedings Before the court by petition.'

Out statute does not observe the distinction between opinion and decision noted in the above text, but does differentiate between a decision of this court and a judgment thereof. The above text correctly states the difference between the words.

In 9 Bancroft's Code Practice and Remedies 9565, § 7253, is found the following: 'Under the rules of some of the courts, the filing of a petition for rehearing within the prescribed time suspends proceedings under the decision until the petition is disposed of, unless the court otherwise orders. Where no contrary order is made, the effect of the pending petition is to prevent the judgment from becoming final until disposed of, and to leave the court in control of the cause within the limits of its appellate...