Ott v. Boring

• Decision Date: 30 April 1907
• Citation: 111 N.W. 833,131 Wis. 472
• Parties: OTT v. BORING.
• Court: Wisconsin Supreme Court

131 Wis. 472

111 N.W. 833

OTT

v.BORING.

Supreme Court of Wisconsin.

April 30, 1907.

Appeal from Circuit Court, Ashland County.

Action by Eli Ott against C. O. Boring. From a judgment for defendant, plaintiff appeals. Reversed. On motion to recall record in the circuit court. Motion denied.

See 110 N. W. 824.

On motion to recall the record in the circuit court. The judgment of this court reversing the judgment below was rendered and entered February 19, 1907. On March 25, 1907, the plaintiff paid the clerk's fee, applied for the issue of a remittitur, and accordingly one was issued by the clerk, and the record transmitted to the circuit court for Ashland county, where, according to the affidavits, it was filed on March 27th, and notice thereof given to the appellant on March 29th. At that time, and almost continuously from soon after the announcement of our decision, the defendant was busy obtaining affidavits of newly discovered evidence as a basis for a motion to this court to modify the mandate so as to permit the trial court to hear and pass upon a motion for a new trial. He served notice of such motion on April 2d, returnable April 12th, and filed the same in this court on April 3d. On April 1st he attempted to induce the clerk of the circuit court to return the record here, but failed, and on April 4th, conceiving that the presence of the record upon our files was necessary to the hearing of the said motion, he procured an order to show cause, returnable on April 9th, why the remittitur, record, and files should not be transmitted to the clerk of this court by the clerk of the circuit court for Ashland county, and why he should not have such other relief as might be just. On April 9th that motion was heard, and is now to be decided.

Siebecker and Timlin, JJ., dissenting.Sanborn, Lamoreaux & Pray (Burr W. Jones and H. P. Walmsley, of counsel), for appellant.

Tomkins, Tomkins & Garvin, for respondent.

DODGE, J. (after stating the facts).

The salient facts are: That the record remained here more than 30 days after the rendition of judgment. No application was made to this court for an order to retain it longer. It was remitted in less than 60 days, and the present motion to secure its return was made within the 60 days, but after remittitur was filed in circuit court. The contention on the part of the plaintiff is that, when the remittitur was regularly and in obedience to law transmitted to the circuit court, the jurisdiction of this court over the cause, and consequently power over its judgment, terminated, and that it has no power either to act upon that judgment or to recall the record from the circuit court. The contention of the defendant is that, by virtue of the statute, our jurisdiction persists during a period of 60 days from the judgment, and that the mere physical transmission of the record can have no effect upon it. The question of the period of jurisdiction of purely appellate courts is a somewhat intangible one, and not to be decided always upon the same principles and considerations as those which regulate the jurisdiction of courts of general jurisdiction having the function, not only of trial and judgment, but also of execution of the judgment. It seems, from an examination of the authorities, to be well-nigh unanimously declared that, in the absence of statute making a different provision, the jurisdiction of the appellate court over a given cause terminates whenever regularly, without inadvertence or fraud, it returns the record to the court of general jurisdiction. 2 Ency. Pl. & Pr. §§ 359, 384; 2 Spelling, New Tr. & Ap. §§ 733, 734; Hayne, New Tr. & Ap. § 293; Legg v. Overbagh, 4 Wend. (N. Y.) 188; cases collected in note 21 Am. Dec. 119;Delaplaine v. Bergen, 7 Hill (N. Y.) 591;Browder v. McCarthur, 7 Wheat. (U. S.) 58, 5 L. Ed. 397;Peck v. Sanderson, 18 How. (U. S.) 42, 15 L. Ed. 262;Underhill v. Jericho, 66 Vt. 183, 28 Atl. 879;Sullivan v. Speights, 14 S. C. 358;Caldwell v. Bruggerman, 8 Minn. 286 (Gil. 252); Dempsey v. Billinghurst, 7 S. D. 564, 64 N. W. 1124;Leese v. Clark, 20 Cal. 387;Richardson v. Packing Co., 135 Cal. 311, 67 Pac. 769;Ward v. Ins. Co., 12 Wash. 631, 42 Pac. 119;State v. Faulds, 17 Mont. 140, 42 Pac. 285. This apparently rests largely upon the doctrine that when that act is done the jurisdiction of the lower court, which has been suspended meanwhile, becomes re-established, and that both courts cannot have jurisdiction over the cause. Generally, too, it is held, in the absence of statute, that the power of an appellate court over its judgment, like that of courts generally, persists to the end of the term at which the judgment is rendered, and then absolutely terminates, except as it may be terminated earlier by the retransmission of the cause to the trial court. This court's power over its judgment seems to have had no statutory regulation, either by way of limitation or extension, until 1860, when was enacted chapter 264, of which section 7 (page 247) provided that the clerk of this court should remit the papers within 30 days after the judgment, “unless the Supreme Court on application of either of the parties shall direct them to be detained for the purpose of enabling such party to move for a rehearing.” In 1878 “sixty days” was substituted for “thirty days” in that statute. Section 3071, St. 1898. After the passage of the law of 1860, and in 1874, the court gave general direction to its clerk to retain all records for the full 30 days, in absence of consent of parties to the contrary. See Pringle v. Dunn, 39 Wis. 435, 442. That direction later became crystallized in a rule which, prior to the revision of rules in 1906, was embodied in rule 20 (88 N. W. viii), and is now embodied in rule 37. The argument is that the intention of the Legislature to be gleaned from the act of 1860 and its subsequent amendment is to enact that the jurisdiction of this court for the purposes of rehearing shall persist for a period of 60 days, and thereby is repudiated the previously well-established doctrine that it could not persist for any time after the transmission of the record. It will be at once observed that there is nothing in the words of the statute at all necessarily declaring such purpose. The statute, instead of ordering that the record shall remain or that jurisdiction shall persist during the 60 days, commands that the clerk shall remit the record within that 60 days. Hence, at any period after the rendition of the judgment, when he does remit, he acts in obedience to the statute, except as his duty is controlled by the rule of court prohibiting such transmission within the first 30 days. It is pretty clearly indicated that the Legislature did not intend to abrogate or repudiate the doctrine of the necessity of the presence of the record for any motion for a rehearing for they expressly authorized the court to keep the record here throughout said 60 days “for the purpose of enabling such party to move for a rehearing”--a very clear intimation of the supposition of the statute makers that such retention was necessary to enable such a motion. It should perhaps be remarked here, for clearness of terminology, that the words “motion for a rehearing,” as used in this statute, and as we have thus far used them in this opinion, are to be construed broadly, as including any motion involving a setting aside or modification of the judgment actually rendered by the court, inclusive both of the motion for a rehearing, strictly so called, and those motions for the modification of a judgment, but not for a reargument of the case, which have come to be termed motions in the nature of a motion for a rehearing. Hocks v. Sprangers, 113 Wis. 123, 87 N. W. 1101, 89 N. W. 113.

It appearing, as we have already stated, that the statute in question can only receive the effect claimed for it by the defendant by some construction and not by the necessary force of its words, we turn to the construction which it has received from time to time by the court. From a pretty complete examination of all cases bearing upon it, it may be confidently asserted that in no case has the court entertained a motion for a rehearing, or one of that nature, after the record had passed to the court below, and in a number of cases the court has refused to entertain such a motion upon the ground clearly declared that the remission of the record had taken away its power to do so, although it is also true that in the great majority, if not in all, of such cases there may have been as another ground of loss of jurisdiction the expiration of the entire statutory period permitted for the retention of the record. The cases are numerous, but an express reference to a few will suffice. The first case is Ogilvie v. Richardson, 14 Wis. 171. At that time the statute required remission of the record within 30 days, and the rules required a motion for rehearing to be made within 20 days. 3 Pin. 503. The decision was rendered July 10th, the record was remitted August 2d, and motion for rehearing made October 19th, all at the same term of court. The court refused to entertain the motion for a rehearing, and said: “Having been properly remitted to the circuit court, the questions involved are no longer before us; and we know of no way to get the cases here again, unless possibly it should be done by consent of the parties by setting aside the remittitur and returning the record. When cases have been once decided here, and regularly remitted after the time to move for a rehearing has expired, the function of this court with respect to those cases is exhausted.” It will be observed that the remission of the record was at the end of about 22 days, and it is declared “the cases were regularly remitted to the circuit court.” The principle declared in the opinion would have as much excluded jurisdiction on August 3d as on October 19th. The next of significance is Hopkins v. Gilman, 23 Wis. 512. The record was...