Miller v. Southern Pac. Co
| Decision Date | 10 August 1933 |
| Docket Number | 5033 |
| Citation | 24 P.2d 380,82 Utah 307 |
| Court | Utah Supreme Court |
| Parties | MILLER v. SOUTHERN PAC. CO |
Appeal from District Court, Third District, Salt Lake County; Wm. H Bramel, Judge.
Application by the Southern Pacific Company to recall and stay a remittitur issued out of the Supreme Court and filed in the district court after affirmance of a judgment for George Miller against applicant and denial of a petition for rehearing.
Application and return of record on appeal to the Supreme Court denied.
Bagley Judd & Ray, of Salt Lake City, for appellant.
Willard Hanson and A. H. Hougaard, both of Salt Lake City, for respondent.
An application on notice was made in the above case to recall and stay the remittitur issued out of this court and filed in the lower court. The respondent, an employee of the appellant, in the district court of the Third judicial district in and for Salt Lake county, recovered a judgment against the appellant for personal injuries. It was alleged and the case tried on the theory that both the respondent and the appellant at the time of the injury were engaged in interstate commerce and their respective rights and liabilities dependent upon the Federal Employers' Liability Act (45 USCA §§ 51-59). On an appeal from the judgment by the appellant to this court and on a review of the cause on a transcript of the record on the appeal, the judgment of the court below on May 3, 1933, was affirmed, 21 P.2d 865. In due time a petition for a rehearing was served and filed by the appellant which, on July 21, 1933, was denied and an order to that effect duly entered. On the same day the clerk of this court, at the request of the respondent, issued a remittitur which, on the same day, was filed in the lower court, and the transcript of the record on appeal transmitted to the court below. On the same day the clerk of this court at Salt Lake City, where counsel for both parties reside and have their offices, deposited in the United States mail a postal card, postage prepaid, addressed to counsel for the respective parties notifying them of the denying of the petition for a rehearing. Though the card in due course was delivered at the office of counsel for the appellant on the 22d, yet, because that day being Saturday and the next two days holidays and of the absence of counsel from their office, they did not learn of the denying of the petition until the 25th or 26th of July, and then on inquiry were informed that the remittitur and the transcript of the record on appeal had been issued and transmitted to the court below on the 21st. On the 27th, on notice, an application was made to this court by the appellant for an order to recall the remittitur and the transcript of the record on appeal and to stay the remittitur, to enable the appellant to present a petition to the Supreme Court of the United States for a review of the proceedings and of the final judgment of this court in the cause.
On the day set for the hearing of the motion both parties appeared. The respondent opposed the recall of the remittitur on the ground that, when a remittitur on a final disposition of a cause in this court on appeal and upon the denial of a petition for a rehearing is issued by one authorized to issue it and is filed in the court below, and the record on appeal transmitted to that court, we are without jurisdiction to recall the remittitur except upon a showing that the remittitur was issued through fraud or inadvertence or was issued prematurely or otherwise improperly, or to correct an irregularity or error in the issuance of the remittitur, and that no such showing was made. And the respondent further contended that, notwithstanding the issuance and filing of the remittitur in the court below and the transmission of the record on appeal to that court, whatever right the appellant may have to present its petition to the Supreme Court for a review was in no wise affected or impaired.
In the absence of a statute or rule of court to the contrary, the great weight of judicial authority as to the first proposition is as contended by the respondent. 4 C. J. 1244, § 3309 et seq.; 19 Standard Encyc. of Proc., 345; 13 Encyc. of Pleading & Prac. 865, and cases cited in support of the texts. In some jurisdictions, either by statute or rule of court, remitters are issued only on notice to the defeated litigant. We have no such statute or rule of court. We have a statute, Comp. Laws Utah 1917, § 7013, which provides that the clerk of the Supreme Court shall remit to the lower court the papers transmitted to the Supreme Court on the appeal, together with the judgment or decision of the Supreme Court thereon, within thirty days after the same shall have been made, unless the Supreme Court on application of either of the parties shall direct them to be retained for the purpose of enabling such parties to move for a rehearing. The following section provides that a petition for a rehearing shall operate as a stay of proceedings until the decision on the motion therein, and that "where, on notice to the party against which the judgment is entered in any case, the party does not signify an intention to move for a rehearing, the court may order a remittitur at any time."
Rule 20 of this court provides that a petition for a rehearing is required to be filed within twenty days after the filing of the opinion in the cause, and that the filing of the petition for a rehearing suspends proceedings under the decision until the petition is disposed of. The rule further provides that, "upon the determination of the petition for a rehearing * * * the clerk shall issue a remittitur to the court below * * * upon payment of the balance of costs"; and that "notice of an order granting or refusing a rehearing shall be given to counsel for the respective parties." The rule, when a petition for a rehearing is filed and denied, is not as direct and specific as may be desired with respect to time in which the notice is required to be given, nor with respect to the issuance of a remittitur upon a determination of the petition for a rehearing. The rule says that, "upon a determination of the petition for a rehearing," the clerk of this court shall "issue a remittitur to the court below." The granting or a refusal to grant a rehearing is a "determination of" the petition; yet the obvious meaning must be given the rule that a remittitur issues only when the petition is denied and not when it is granted. In case it is denied and an order to that effect entered, the rule except as may be implied does not provide whether the remittitur on payment of costs or fees shall issue forthwith or otherwise.
In issuing the remittitur, as was done, no blame is attached to the clerk of this court nor to counsel for respondent in requesting the remittitur, for that the course pursued was the usual practice in such particular in this jurisdiction, unless counsel for either party in some manner indicated an intention to apply for a stay before the remittitur is issued. The contention of counsel for appellant is that, upon the entry of the order denying the petition for a rehearing, they were entitled to notice of the application for a remittitur before it was issued and filed in the court below, and, no such notice having been given, the remittitur was prematurely issued, and thereby the right of the appellant, though perhaps not destroyed, yet was materially hindered, if not impaired, or at least greatly complicated, to apply for a stay of the remittitur and to enable the appellant to properly and expeditiously present a petition to the Supreme Court of the United States for a review; and that, for such reason, a recall of the remittitur and a return to this court of the record on appeal transmitted to the court below was necessary. Where a petition for a rehearing is denied and an order to that effect entered and the case on appeal thus finally determined by this court, we, in view of our statute and of the rule of this court, find it unnecessary, for several reasons, to decide whether the remittitur was prematurely or improperly issued because insufficient or no notice was given the appellant of the application or request for the remittitur before it was issued, especially since neither the statute nor the rule, in such case, expressly provides the giving of such a notice.
In the first place, we are of the opinion that the issuance and filing of the remittitur in the lower court and transmitting the record on appeal to that court did not hinder or impair whatever right appellant may have to present a petition to the Supreme Court of the United States for a review. Merrill v. Nat'l Bank of Jacksonville, 173 U.S. 131, 19 S.Ct. 360, 43 L.Ed. 640. In 8 Hughes' Federal Practice, § 6261, the author says:
--citing cases.
So, too, in 6 Cyc. Federal Proc. § 2800, p. 241, it is said:
"The present statute (28 USCA §§ 871, 872; U.S. Rev. Stats., Secs. 1003 and 1004), having...
To continue reading
Request your trial
- State v. Buchanan
-
State v. Lara
...In contrast, the State emphasizes the effect of remittitur on appellate court jurisdiction, citing language from Miller v. Southern Pacific Co., 82 Utah 307, 24 P.2d 380 (1933), that remittitur may be withdrawn only upon a "showing that the remittitur was issued through fraud or inadvertenc......
-
State v. Lara
...or otherwise improperly, or to correct an irregularity or error in the issuance of the remittitur." Miller v. Southern Pacific Co., 82 Utah 307, 24 P.2d 380, 381 (1933); see also Hi-Country Estates v. Foothills Water Co., 942 P.2d 305 (Utah 1996). Because this court did not erroneously remi......