State v. Waddell

• Decision Date: 04 May 1934
• Docket Number: 29,080
• Citation: 254 N.W. 627,191 Minn. 475
• Parties: STATE v. LYLE C. WADDELL
• Court: Minnesota Supreme Court

254 N.W. 627

191 Minn. 475

STATE v. LYLE C. WADDELL

No. 29,080

Supreme Court of Minnesota

May 4, 1934

Petition to this court by defendant for an order recalling the remittitur and for permission to file an amended supplemental petition for rehearing. Application denied.

For original opinion see 187 Minn. 191, 202, 245 N.W. 140, 144.

SYLLABUS

Criminal law -- remand to lower court -- jurisdiction of supreme court to entertain petition for rehearing.

This court, after a remittitur is regularly sent down in a criminal case, has no power to recall the same for the purpose of entertaining an application for rehearing.

J. W Schmitt, Moonan & Moonan, and Gallagher, Madden & Gallagher, for defendant.

Harry H. Peterson, Attorney General, and Roy C. Frank, Assistant Attorney General, for the state.

OPINION

LORING, Justice.

This is a petition for an order recalling the remittitur and for permission to file an amended supplemental petition for rehearing. The original opinion in this case was filed October 21, 1932. November 18, 1932, a petition for rehearing was denied. State v. Waddell, 187 Minn. 191, 202, 245 N.W. 140, 144. This petition for the recall of the remittitur was filed December 21, 1933, in the term following the one in which the original opinion was filed.

This court is committed to the rule in civil cases that unless there has been some irregularity in connection with the remittitur its jurisdiction is divested and it has no authority to recall the remittitur when it has once been regularly sent down to the lower court. Rud v. Bd. of Co. Commrs. of Pope County, 66 Minn. 358, 68 N.W. 1062, 69 N.W. 886.See also Hunt v. Meeker County A. & L. Co. 130 Minn. 530, 152 N.W. 866, and Caldwell v. Bruggerman, 8 Minn. 252 (286).

No case has been cited to us and we have discovered none in which our power to recall the remittitur in a criminal case has been passed upon. It is therefore a novel question in this state.

2 Mason Minn. St. 1927, § 9494, defines the powers of an appellate court in civil actions. It provides:

"Upon an appeal from a judgment or order, the appellate court may reverse, affirm, or modify the judgment or order appealed from in the respect mentioned in the notice of appeal and as to any or all of the parties, and, if necessary or proper, may order a new trial. When the judgment is reversed or modified, the appellate court may make complete restitution of all property and rights lost by the erroneous judgment."

On appeal or writ of error in criminal cases 2 Mason Minn. St. 1927, § 10752, provides:

"No assignment of errors or joinder in error shall be necessary upon any writ of error issued or appeal taken in a criminal case, but on the return thereto the court shall proceed and render judgment upon the record before it. If the court affirms the judgment, it shall direct the sentence pronounced to be executed, and the same shall be executed accordingly. If it reverses such judgment, it shall either direct a new trial, or that the defendant be absolutely discharged, as the case may require."

There is a distinction between the two statutes, and the question presented here is whether the criminal statute permits a construction which will allow this court to recall the remittitur in the furtherance of justice in such cases. In civil cases as a matter of policy a period should be set at some point where the rights of the parties are finally determined and there is no more opportunity for either to prolong the litigation. This court has wisely said that it will not recall the remittitur in such cases when the same has gone to the lower court except certain circumstances of fraud, mistake, or inadvertence as defined in the cases cited.

Among the criminal cases cited by the state in opposition to this application is State v. Sund, 25 N.D. 59, 140 N.W. 716, 717, in which the supreme court of North Dakota held:

"That when a remittitur has gone down, and has been filed in the trial court, this court, except under extraordinary circumstances, has lost jurisdiction of the case, and cannot review its decision."

The statutes of North Dakota, however, specifically provide:

"After the certificate of the judgment has been remitted to the court below, the appellate court has no further jurisdiction of the appeal or the proceedings therein, * * *." Comp. Laws N.D. 1913, § 11020.

The state also cites In re Seydel's Estate, 14 S.D. 115, 84 N.W. 397, in which the supreme court of that state held that it had no power to grant a rehearing after the remittitur has gone down. Doubtless the same rule would apply to criminal cases. Comp. Laws S.D. 1913, Code of Criminal Procedure, Title 10, c. 4, § 505, p. 720, provides:

"After the certificate of the judgment has been remitted to the court below, the supreme court has no further jurisdiction of the writ, or the proceedings thereon, * * *."

The state also cites State v. Banning, 205 Iowa 826, 829, 218 N.W. 572, 574, where the court held:

"For ordinary purposes, the jurisdiction of this court ends with its decision and the expiration of the time allowed for petitions for rehearing, and * * * the lower court thereupon resumes jurisdiction to proceed with the cause, * * *."

Section 14016 of the Code of Iowa 1931 provides among other things that after a certified copy of the decision and the opinion shall be transmitted to the clerk of the trial court, filed and...