Mcbride v. Coleman
| Decision Date | 19 December 1919 |
| Docket Number | 23,691 |
| Citation | 125 N.E. 449,189 Ind. 7 |
| Parties | McBride v. Coleman, Receiver, et al |
| Court | Indiana Supreme Court |
From Marion Superior Court (97,826); John J. Rochford, Judge.
Action by Bert McBride against Richard M. Coleman, as receiver of the Independent Envelope Company, on his verified claim for services rendered as receiver under appointment of the circuit court. From a judgment disallowing the claim, the claimant appeals.
Reversed.
Smith Remster, Hornbrook & Smith, for appellant.
Ryan Ruckelshaus & Ryan, for appellee.
On February 10, 1915, appellant was appointed receiver for the Independent Envelope Company by the Marion Circuit Court. He acted as such receiver until January, 1916, when, pursuant to the mandate of this court in Coleman v Callon (1915), 184 Ind. 204, 110 N.E. 979, he turned over the assets of said company to appellee, receiver for the same company by virtue of an appointment made by the superior court of Marion county. This court in the Coleman case, supra, held that the superior court was first to obtain jurisdiction to appoint.
The instant case is a claim filed by appellant in the latter receivership for pay for himself and his attorneys in the former receivership. The court denied appellant's claim and rendered judgment against him for costs. The error assigned is the overruling of the motion for a new trial: (1) The decision is contrary to law. (2) The decision is not sustained by sufficient evidence.
The claim shows that appellant performed valuable services for the estate. The undisputed evidence tends to prove this claim. So it is obvious that the nisi prius court was misled by the language of this court in the Coleman case, supra, wherein it was said on pages 207 and 208 that the appointment of appellant by the circuit court "was without authority and void." Nor is it strange that this should happen, for the Appellate Court has fallen into the same error; and so has this court, for on December 18, 1918, it denied transfer, and the mandate of the Appellate Court, affirming the judgment in this case, was sent down. On February 13, 1919, this court set aside this denial of transfer.
Now at this point we are met by objection from appellee that this court has no power to recall this mandate and take this cause up on a petition to transfer. Appellee contends that, when the mandate of the court has gone down, the power of this court over a cause ceases and that the lower court attaches, and nothing further can be done by us in the premises. To sustain this contention they rely particularly on Ott v. Boring (1907), 131 Wis. 472, 110 N.W. 824, 111 N.W. 883, 11 Ann. Cas. 857, and cases cited in that opinion. An examination of that opinion discloses that it is based, to some extent at least, on Legg v. Overbagh (1830), 4 Wend. (N. Y.) 188, 21 Am. Dec. 115. This case is not given the interpretation by the courts of New York which the Wisconsin court places upon it. In Franklin Bank Note Co. v. Mackey (1898), 158 N.Y. 683, 51 N.E. 178, the New York court said: The court further says: "This later practice of the court is not necessarily inconsistent with the earlier cases, which hold that this court has no jurisdiction to grant a reargument or an amendment of the remittitur after the remittitur is filed and acted upon in the court below." (The italics are ours.)
In the instant case the denial of transfer and order setting it aside were made at the same term of this court. It is well established that courts of general jurisdiction have power to set aside and correct their judgments at the same term; but it is contended that we, as a court of review, have no such power where the mandate has gone down. If there is any force in this contention, it must be based upon the proposition that jurisdiction cannot be in both courts at the same time. This anomaly does not of necessity follow. This court certainly may inquire at the same term whether the lower court has acted upon its mandate and, in case it has not, may supersede that mandate and resume jurisdiction. If this court has no such power, then an erroneous opinion reversing a judgment may be sent down to the lower court and even though this court discovers its mistake at the term, and even though this court may find out that the lower court has not acted upon the mandate, still nothing can be done to correct the mistake. The trial in the lower court on this erroneous opinion must go on and, on a subsequent appeal, this court will be bound by its erroneous opinion as the law of the case.
We hold that this court has power during the term, when it discovers an error, to inquire whether its mandate has been acted upon and, if it has not, to resume jurisdiction and supersede and change its mandate. The time given by statute for rehearing and petitions to transfer is a legislative limitation upon the parties, but it does not take away the inherent power of the court to correct errors during term. Elliott, App. Proc. § 550.
Appellee further relies on the following authorities from this state Parker v. State (1893), 133 Ind. 178, 216, 32 N.E. 836, 33 N.E. 119, 18 L. R. A. 657; Dudgeon v. Bronson (1902), 159 Ind. 562, 566, 64 N.E. 910, 65 N.E. 752, 95 Am. St. 315; Hutts v. Bowers (1881), 77 Ind. 211, 213; Pittsburgh, etc., R. Co....
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