Powers v. Sturtevant

• Decision Date: 06 January 1909
• Citation: 86 N.E. 789,200 Mass. 519
• Parties: POWERS v. STURTEVANT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

200 Mass. 519

86 N.E. 789

POWERS v. STURTEVANT.

Supreme Judicial Court of Massachusetts, Suffolk.

January 6, 1909

COUNSEL

David T. Montague and Wade Keyes, for appellant.

Whipple Sears & Ogden and Edwin M. Brooks, for appellee.

OPINION

KNOWLTON C.J.

This is an appeal by the defendant from an order of the superior court that judgment be entered for the plaintiff. The appeal is founded upon the fact that an application for a rehearing on account of a supposed error in law in the decision of the case by the full court, had been sent to the Chief Justice and the receipt of it had been acknowledged, with a statement that it would be considered by the justices at their next meeting for consultation. The application was sent in July, and the next meeting of the justices was to be on the first Tuesday of September.

The defendant seemingly misapprehends the standing of a case after a final decision of it by the full court upon questions of law. On this subject Chief Justice Gray said, in the opinion in Winchester v. Winchester, 121 Mass. 127-130:

'The practice of that court [the English Court of Chancery] affords no rule to govern a court of last appeal, whose judgments have the strongest presumptions in their favor, and cannot be freely reconsidered without unreasonably protracting litigation and disregarding the claims of other suitors to the attention of the court.

'After final judgment in the House of Lords or in the Judicial Committee of the Privy Council, no rehearing is allowed, unless for the purpose of correcting mistakes in the form of the decree. * * * In the Supreme Court of the United States no rehearing of a case once decided is granted, nor even an argument permitted upon the question whether a rehearing should be had, unless the court, upon inspection of the petition for a rehearing, sees fit so to order, * * * and this court, for some years past, has conformed to that practice as essential to the discharge of its increasing business.'

He supports his statements as to the practice in England and in the Supreme Court of the United States by numerous citations. A similar practice prevails generally in the courts of last resort in the states of this country, although there are two or three, and possibly more, in which applications for a rehearing of questions of law are entertained and arguments heard upon them. The application in Winchester v. Winchester ubi supra, was on the ground that a decree had been entered erroneously as by consent of the parties, when in fact there was no consent. The court received the application without hearing argument upon it, and announced a decision refusing a rehearing. In cases of applications for a rehearing on the ground of a supposed error of the full court, it has been the practice, for many years, not to treat them as having any standing as a part of the legal procedure in the case. They are not recognized by our statutes. They cannot be made as a matter of right, and they are...