Patterson Land Co. v. Lynn

Decision Date28 April 1917
Citation36 N.D. 341,162 N.W. 702
PartiesPATTERSON LAND CO. v. LYNN.
CourtNorth Dakota Supreme Court

OPINION TEXT STARTS HERE

Syllabus by the Court.

When the Supreme Court becomes invested with jurisdiction of a cause brought there on appeal, it retains such jurisdiction until the cause has been disposed of and the remittitur sent down to the court below; but when a final order has been entered, and the remittitur transferred to, and judgment entered thereon in, the court below, the Supreme Court loses jurisdiction to recall the remittitur and reinstate the cause, unless the remittitur was sent down through inadvertence, mistake, or fraud.

Judgment for defendant was reversed on appeal. Motion to recall remittitur and reinstate the appeal. Denied.

For former opinion, see 27 N. D. 391, 147 N. W. 256.

Robinson, J., dissenting.George W. Newton, of Bismarck, and R. N. Stevens, of Minnewaukon, H. C. Lynn and Geo. W. Lynn, both of Linton, and H. A. Bronson, of Grand Forks, for the motion. Watson & Young and E. T. Conmy, all of Fargo, opposed.

PER CURIAM.

The defendant has filed an application to recall the remittitur in this case. The original opinion reported in 27 N. D. at page 391, 147 N. W. 256, was filed March 6, 1914, and a rehearing was denied April 11, 1914. In his application for a recall of the remittitur the defendant assails both the findings of fact and the conclusions of law contained in the former opinion. Among other questions urged is that this court rendered judgment upon an amended pleading without permitting a trial upon the issue formed by such amendment. It is contended that the proper practice would have been to have directed the amendment to be allowed and remanded the case for trial upon the pleading as amended. We have examined the original briefs, and find that considerable space was devoted to a discussion of whether the trial court should have allowed an amendment of the complaint. We have also examined the petition for rehearing, which consists of 87 pages of typewritten matter. This petition is a complete reargument of the entire cause and assails practically every portion of the opinion. The last 8 pages of the petition are devoted almost exclusively to an attack on that portion of the opinion which deals with and allows the proposed amendment to the complaint and orders judgment upon the complaint as amended. The matter is argued at length and with great particularity, and it was claimed then, as now, that where an amendment of the pleading has been allowed, evidence formerly taken is not admissible to support substantive matter in the pleading as amended. No claim, however, was made in the petition for rehearing that any actual prejudice had resulted or that the defendant had any evidence which he desired to offer upon the issues arising under the amended pleading. It will be noted that the original opinion was handed down and a rehearing denied more than three years ago. It also appears that judgment was entered in the district court in accordance with the findings and conclusions of this court in July, 1914, and that notice of entry of judgment was served upon the defendant at that time. It further appears that proceedings have been had in the district court in accordance with the directions contained in the former opinion herein to ascertain the amounts to be paid by the Patterson Land Company to the defendant for the amounts expended and incurred by him in obtaining titles, taxes paid by him, and the cost of any improvements which he may have placed on the premises. There is no claim that defendant has questioned the binding effect of the former decision during all of this time.

If the remittitur can be recalled in this case, it is difficult to conceive of any litigation that may be deemed definitely ended or any judgment of this court which may be deemed final and conclusive. The rule, sustained by the overwhelming weight of authority, is that, when the Supreme Court upon appeal becomes invested with jurisdiction of a cause, it retains such jurisdiction until the cause is disposed of and the remittitur sent down to the court below. And when it appears that after decision the remittitur is sent down intentionally in accordance with the court's order, properly made in the usual way, the Supreme Court loses all control over the cause and cannot subsequently recall the remittitur, any more than it may ask that a cause in which no appeal has been taken be forwarded to it for decision. The only instances in which the remittitur may be recalled is when it was sent down through inadvertence, mistake, or fraud; that is, under such circumstances that it was not in fact the act of the court. This rule has been announced by this court, and is founded in good sense and sound public policy. It is also sustained by the overwhelming weight of judicial authority. See Hilmen v. Nygaard, 31 N. D. 419, 154 N. W. 529, and the extended note to this case as reported in Ann. Cas. 1917A, 282 et seq.

In this case a rehearing was denied after defendant had presented in his petition for rehearing the very questions he presents now. The remittitur was sent down intentionally as a result of the deliberate judgment of the court.

The motion is denied.

BRUCE, C. J., not participating.

ROBINSON, J. (dissenting).

This is a motion to recall the remittitur and to reconsider the decision by this court in 27 N. D. 391, 147 N. W. 256. In this case the plaintiff sues to quiet its title to some 20 quarter sections of land. It comes into court with no title, and by some nice practice they obtained a decree awarding it the title of the adverse ...

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8 cases
  • Weigel v. Powers Elevator Company, a Corp.
    • United States
    • North Dakota Supreme Court
    • March 19, 1924
    ... ... remittitur to the trial court. Patterson Land Co. v ... Lynn, 36 N.D. 341, 162 N.W. 702. Thereupon, this court ... possessed the ... ...
  • State v. Jager
    • United States
    • North Dakota Supreme Court
    • July 23, 1958
    ...filed in the trial court, under all ordinary circumstances this court has lost jurisdiction of the case. * * *' In Patterson Land Co. v. Lynn, 36 N.D. 341, 162 N.W. 702, we held: 'When the Supreme Court becomes invested with jurisdiction of a cause brought there on appeal, it retains such j......
  • Youmans v. Hanna
    • United States
    • North Dakota Supreme Court
    • July 27, 1918
    ...36 N.D. 341, 162 N.W. 702. The issues involved in that case are entirely different than those involved in the case at bar. The Patterson Land Co. v. Lynn case was a in equity, and, as we understand it, an action brought to quiet title to certain lands. In that case the court not only had au......
  • Patterson Land Co. v. Lynn
    • United States
    • North Dakota Supreme Court
    • July 28, 1924
    ...by the defendant to recall the remittitur and reinstate the appeal in the foregoing cases. This motion was denied in Patterson Land Co. v. Lynn, 36 N. D. 341, 162 N. W. 702, on April 28, 1917. In 1919 the defendant made application to this court, on motion, “to vacate the determination, ord......
  • Request a trial to view additional results

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