Pittsburg, C., C. & St. L. Ry. Co. v. Hays

• Decision Date: 18 March 1897
• Citation: 17 Ind.App. 261,46 N.E. 597
• Parties: PITTSBURG, C., C. & ST. L. RY. CO. v. HAYS et al.
• Court: Indiana Appellate Court

17 Ind.App. 261

46 N.E. 597

PITTSBURG, C., C. & ST. L. RY. CO.

v.HAYS et al.

Appellate Court of Indiana.

March 18, 1897.

On motion to set aside judgment and transfer case to supreme court. Overruled.

For former opinion, see 44 N. E. 375, and 45 N. E. 675.

BLACK, J.

An appeal was brought to this court by the Pittsburg, Cincinnati, Chicago & St. Louis Railway Company from a judgment rendered against it in the Jay circuit court in favor of John Hays and John Reese. The transcript was filed in the office of the clerk of this court, and an assignment of errors was entered thereon, on the 1st of June, 1895. On the 11th of June, 1896, a judgment of affirmance was rendered; the opinion of the court being delivered by Lotz, J. See 44 N. E. 375. At the same term of this court, on the 18th day of July, 1896, the appellant in said cause filed its petition for a rehearing, which was carried over into the present term, and on the 30th of December, 1896, was overruled; an opinion thereon being rendered per Lotz, J. See 45 N. E. 675. On the 7th of January, 1897, the attorney for the appellant in that cause filed in this court his petition, entitled as in said cause. Omitting the caption and the signature of the attorney, said petition is as follows: “The appellant asks the court to withdraw its opinions heretofore rendered and filed in the above-entitled cause, and transfer the same to the supreme court, for the reason that the constitutionality of the act under which the appellees recovered the judgment appealed from was duly presented in said cause and argued before this court, for which reason this court had no jurisdiction to decide said cause, and it was its duty to transfer said cause to the supreme court of Indiana, which it has neglected to do, and that for want of jurisdiction its decision in said cause is void. This application is made in order, if possible, to obviate the necessity of a writ of mandate from the supreme court requiring this court to transfer said cause to that court. All of which is respectfully submitted.” With this petition the attorney who signed it filed a paper indorsed as a brief, in which, in support of the motion, “the court is referred to the briefs on file in this cause, and particularly to the motion for a rehearing and the brief in support thereof.” This brief is upon a single page. No argument is offered and no authorities are mentioned.

It is provided by statute (Rev. St. 1894, § 674; Horner's Rev. St. Ind. 1896, § 662), that, at any time within 60 days after any cause is determined in the supreme court, either party may file a petition for a rehearing; if not so filed, the decision and instructions of the supreme court shall be certified to the court below, unless otherwise ordered by the court. It is also provided (Rev. St. 1894, § 1351; Horner's Rev. St. Ind. 1896, § 6575) that a rehearing may be prayed in any cause in this (the appellate) court within the time allowed therefor by the supreme court, and may be granted for sufficient cause, and the judgment of the appellate court shall not be certified to the court below until after the expiration of the time allowed for the petition for a rehearing, unless such rehearing be waived in writing. A petition for a rehearing must be filed within 60 days after the cause is determined. When that period has expired after judgment of affirmance or reversal, the statutory right of a party to petition for a rehearing is gone. The present application cannot be regarded as a petition for a rehearing. The railroad company has exhausted its statutory right. To accomplish the end sought by the petitioner in the present application (that is, the transfer of the cause to the supreme court), it would be necessary to set aside the judgment of affirmance rendered in said cause, and thereby to make it a cause pending in this court. Among the statutory provisions relating to this court are the following: “In any case wherein an appeal has been taken from a lower court to the appellate court, and the same should have been taken to the supreme court, it shall be the duty of the appellate court on its own motion to cause such cause to be transferred to the supreme court. * * * That in any case pending in the appellate court, in which said appellate court shall conclude that any decision of the supreme court should be overruled or modified, it shall be their duty to transfer said cause, with their opinion of what the law should be, to the supreme court, and the supreme court shall thereupon have jurisdiction of and decide the entire case.” Rev. St. 1894, § 1362; Horner's Rev. St. Ind. 1896, § 6586. “The appellate court shall not have jurisdiction of any case where the constitutionality of a statute, federal or state, or the validity of an ordinance of a municipal corporation is in question and such question is duly presented.” Rev. St. 1894, § 1336; Horner's Rev. St. Ind. 1896, § 6562a. The same section provides for the certification of such a case to the supreme court.

The appellant in said cause, having exercised its statutory right to ask a rehearing, and a rehearing having been denied, now, by the present application, seeks to have the judgment rendered by this court at a former term set aside as void because of alleged want of jurisdiction of the subject-matter. It is said in the petition before us that the decision was void, and the petitioner seems to proceed upon the theory that, if we do not decide in his favor upon this application, our decision will be void; that is, he first invokes the action of this court in the setting aside of its judgment as void, before seeking the intervention of the supreme court by mandate. This proceeding, it is hardly necessary to say, is not one invoking the power of this court to make its record show, now for then, what was done, so that the record may conform to the truth. Nor are we asked to render a different final judgment in the cause. But we are asked, in effect, to declare the judgment void, and to recall the certification of the judgment of affirmance to the court below, and then, the cause being in fieri, to transfer it to the supreme court. Mr. Freeman, in speaking of the common-law power of courts to vacate judgments says: “One rule is, however, undoubted. It is that the power of a court over its judgments, during the entire term at which they are rendered, is unlimited.” Freem. Judgm. § 90. See People v. Zane, 105 Ill. 662; Ex parte Lange, 18 Wall. 163. “All judgments regularly entered must be final at the end of the term. After that time the courts which entered them have no power to set them aside, unless some proceeding for that object has been commenced within the term, and has been continued for hearing, or otherwise remains undisposed of. In those cases in which the court afterwards interferes to vacate or annul a judgment, the interference can only be justified on the ground that the judgment was procured in such a manner as to indicate that it was not intended to be authorized by the court, or, if authorized by the court, that it is nugatory for want of jurisdiction over the parties. * * * The want of power to vacate judgments after the lapse of the term at which they were regularly entered exists in the appellate as well as in the subordinate courts.” Freem. Judgm. § 96. Power to set aside a judgment as void has frequently been exercised on application made at a term subsequent to that at which the judgment was rendered. In Ex parte Crenshaw, 15 Pet. 119, the supreme court of the United States declared its decree of reversal pronounced at the preceding term null and void, and revoked its mandate to the lower court, because the appellee, Crenshaw, who had not appeared to the appeal, was not cited to appear as required by the statute; the decree so declared void having been rendered under the belief that the citation had been issued and served. It was said, per Taney, C. J.: “A motion has been made at the present term, on behalf of Crenshaw, to set aside and annul the judgment and decree of this court, and also to dismiss the appeal. As there is no case now pending here between these parties, there is nothing upon which an order to dismiss would operate. But, upon the facts above stated, it is very clear that the case was not legally before us at the last term; and the decree then pronounced must therefore be declared null and void, and the mandate directed to the circuit court must be revoked.” In Pettus v. McClanahan, 52 Ala. 55, it was said: “If a judgment or decree is not void for want of jurisdiction, the court rendering it, whether it is a court of superior or inferior, of general or limited, jurisdiction, has no power, at a term subsequentto its rendition, to vacate or alter it. The correction of clerical misprisions is the extent of the power the court can subsequently exercise. * * * When, however, a court has rendered a judgment or decree void on its face, a due regard to its own dignity, the protection of its own officers, and the preservation of the judgments it may rightfully render, demand that it should, on a proper application, vacate such judgment or decree at any time subsequent to its rendition. If fraud is not imputed, the invalidity of the judgment must appear on the face of the record, except in the event of the death of either party, on whom the judgment or decree is to operate, when it was rendered.” In Donnell v. Hamilton, 77 Ala. 610, the question being whether the supreme court of Alabama could set aside its own judgment and decree after adjournment of the term at which it was rendered, it was said, “We think it cannot do so unless the judgment or decree which is sought to be set aside is void on its face.” The terms of this court, like the terms of our supreme court, are 6 months in length. When a petition for a rehearing has been overruled, or when the period of 60 days has elapsed after the determination of a cause without the filing of a ...