Kosten v. Fleming

• Decision Date: 10 April 1943
• Docket Number: 28842.
• Citation: 17 Wn.2d 500,136 P.2d 449
• Parties: KOSTEN v. FLEMING et al.
• Court: Washington Supreme Court

136 P.2d 449

17 Wn.2d 500

KOSTEN v. FLEMING et al.

No. 28842.

Supreme Court of Washington

April 10, 1943

Department 1.

On motion to recall the remittitur and correct the judgment of the Supreme Court, contained in 131 P.2d 170.

Motion denied.

Riddell & Riddell, of Seattle, for appellant.

Kennett & Benton and Fred C. Campbell, all of Seattle, for respondents.

JEFFERS Justice.

This matter is Before us on a motion of respondents, Inglis Fleming and Mary Fleming, his wife, and C. Gordon Fleming their son, to recall the remittitur issued on January 15 1943, and to correct the judgment of the court contained therein, in so far as it directs the recovery of damages and costs against respondent C. Gordon Fleming, by striking therefrom all provisions for damages and costs against that respondent, and also to clarify the judgment by stating under what statute the trial court is to assess damages--that is the state statute or the appropriate sections of the Federal Emergency Price Control Act, 50 U.S.C.A. Appendix, § 901 et seq.--and to permit the trial court to hear such evidence as may be necessary to enable it to fix damages.

The remittitur above referred to was issued in the above entitled cause, which was instituted in the superior court for King county, by Grace Kosten, as plaintiff, against Inglis Fleming and Mary Fleming, his wife, and C. Gordon Fleming, as defendants, for unlawful detainer. The complaint alleges a cause of action against all three defendants for unlawfully depriving plaintiff of possession of her property. Inglis Fleming and wife, in their answer, claimed the right to occupy the premises in question, under and by virtue of a lease. C. Gordon Fleming, by a separate answer, denied generally the allegations of the complaint, and as an affirmative defense, alleged that he was the son of the other defendants, and that he now resides with his parents and for several years has paid for his room and board; that he disclaims any interest in the premises, or any right to the possession thereof.

On the issues raised by the pleadings, the cause came on for hearing Before the court, and resulted in a judgment of dismissal in favor of defendants.

The trial court made and entered findings of fact and conclusions of law. In finding No. 3, the court set out the form of the 'Notice to Terminate Tenancy,' which was served on each of the defendants. This notice purported to terminate the tenancy on December 31, 1931. Finding No. 4 states the manner in which service of the notice was made on the three defendants. Then in finding No. 5 it is stated: 'That the defendants have continued in possession of the above described premises and refused to deliver possession thereof to the plaintiff.'

Grace Kosten appealed from the judgment entered, and this court reversed the judgment of the lower court, remanding the cause with directions 'to enter judgment in favor of appellant for restitution of the property and damages, as provided by stature.' Kosten v. Fleming, Wash., 131 P.2d 170, 172.

Respondents filed a petition for rehearing, which was denied on January 15, 1943, and on the same date this court entered a judgment, which, in so far as material, provides: 'Considered, adjudged and decreed, that the judgment of the said superior court be, and the same is hereby reversed, and the cause remanded with directions to enter judgment in favor of appellant for restitution of the property and damages, as provided by statute; and that the said Grace Kosten have and recover of and from the said Inglis Fleming and Mary Fleming, his wife, and C. Gordon Fleming the costs of this action taxed. * * *'

After the judgment had been transmitted to the superior court, counsel for appellant presented to that court proposed findings, conclusions and judgment. Among the findings proposed was the following: 'The defendants above named, and each of them, have continued in possession of said premises and are now in possession of the same and refuse to deliver the possession thereof to the plaintiff.'

The following conclusion of law, among others, was also proposed and presented to the trial court: 'That as a matter of law the defendants, and each of them, have been and are now guilty of the unlawful detainer of said premises; that the plaintiff ought to be put in the possession thereof, and that the plaintiff ought to have and recover of and from the defendants $780 as damages for the forcible detainer thereof for the calendar year 1942, together with damages at the rate of $65 per month for such period of time as the defendants shall continue to remain in possession thereof, together with the plaintiff's costs and disbursements herein to be taxed.'

The judgment porposed was in conformity with the findings and conclusions, and was a judgment against all three defendants (which included C. Gordon Fleming).

Respondents state that the trial court expressed its intention of signing the proposed findings, conclusions and judgment, unless this court corrects its judgment.

It is respondents' contention that, C. Gordon Fleming having by his answer and testimony disclaimed any interest in the premises or right to possession thereof, and having Before the entury of a decree herein vacated the premises, a judgment against him for damages and costs is erroneous, and that this court should recall its remittitur and correct the same so as to exclude C. Gordon Fleming from any liability for damages or costs.

It is also contended by respondents that the Emergency Price Control Act supplants the state statutes in conflict therewith, and that by order issued under the Federal act, the Office of Price Administration froze rents in the area in which this property is located, effective as of June 1, 1942, and thereby established the reasonable rental of such property to be fifteen dollars per month; that the maximum rent which could be charged for the premises subsequent to June 1, 1942, is fifteen dollars per month; that under the Federal act, respondents could not be subject to any penalties for retaining possession of the premises during appellant's appeal.

Considering first that part of respondents' motion wherein it is claimed that C. Gordon Fleming was erroneously adjudged to be liable for damages and costs, we are of the opinion this contention cannot be sustained. The judgment of this court correctly held C. Gordon Fleming, as well as the other two respondents, to be liable for unlawful detainer of the premises, and therefore subject to a proper judgment for damages and costs, to the same extent as the other respondents.

The issues were well defined by the pleadings, so far as this respondent is concerned, and there is no question but that he had his day in court. Upon appeal to this court from the judgment entered by the trial court, one of appellant's assignments of error (No. 18) was that 'the trial court erred in dismissing plaintiff's complaint as to defendant, C. Gordon Fleming.' Respondents were advised that the question of the liability of C. Gordon Fleming was Before this court, and this court had jurisdiction and authority to make and enter such judgment as it deemed proper as to the liability of C. Gordon Fleming. The argument of respondents that this court erred in entering the judgment it did against C. Gordon Fleming is, it seems to us, an attempt to again bring Before this court a question already decided in the case.

This court has long recognized the rule that the remittitur, which is nothing more nor less than the judgment of this court, having been transmitted to the superior court, this court has lost jurisdiction of a case, and cannot recall the remittitur, except in certain instances, to which attention will be called later. This general rule has been announced in a long line of cases decided by this court. We cite a few of them: State ex rel. Burke v. County Commissioners, 61 Wash. 684, 112 P. 929; Peabody v. Edmonds, 72 Wash. 604, 131 P. 250; Gordon v. Hillman, 102 Wash. 411, 173 P. 22; Pacific Tel. & Tel. Co. v. Henneford, 199 Wash. 462, 92 P.2d 214.

The general rule above announced, with some of the exceptions thereto, is stated in 5 C.J.S., Appeal and Error, p. 1560, § 1996, as follows:

'The rules most generally adhered to are that an appellate court is without power to recall a mandate regularly issued without inadvertence, fraud, prematurity, or misapprehension, and that it will not recall the mandate for the purpose of reexamining the cause on the merits, for the purpose of granting supplemental relief, for the purpose of changing the substance and effect of its final determination, because an alleged adverse party was not made a party to the appeal, or for the purpose of striking harmless surplusage from the judgment.

'The appellate court, however, may recall its mandate where it was inadvertently issued upon a misapprehension of the facts; for the purpose of allowing or refusing costs, where they were improperly denied or granted; where there are clerical errors, fraud, or imposition in the judgment; where the mandate does not conform to the judgment; where the lower court did not render the judgment called for by the mandate of the appellate court.'

In 84 A.L.R. 579, the general rule is stated to be as follows 'Though the courts are not agreed as to the exact time when a appellate court loses jurisdiction of a case (see 2 R.C.L. p. 265), it may be laid down as a general rule, subject to exceptions subsequently noted, that, after a case has been fairly submitted to an appellate court, and the court has regularly determined the issues involved and caused its judgment in conformity with such determination to be entered, and its judgment has been properly entered, and the case...