Swiggum v. Valley Inv. Co.

• Court: North Dakota Supreme Court
• Writing for the Court: Per Curiam
• Citation: Swiggum v. Valley Inv. Co., 74 N.D. 156, 19 N.W.2d 857 (N.D. 1945)
• Decision Date: 13 November 1945
• Docket Number: 6932,6933.

19 N.W.2d 857

74 N.D. 156

SWIGGUM v. VALLEY INV. CO.

SAME v. VALLEY INV. CO. et al.

Nos. 6932, 6933.

Supreme Court of North Dakota

November 13, 1945

Syllabus by the Court.

1. Rule 15 of the rules of the Supreme Court, 41 N.D. 695, 696 which provides: 'A petition for rehearing may be filed * * * at any time within fifteen days after the decision in the case is filed. In all cases, the remittitur shall be stayed until the expiration of the time for the filing of petitions for rehearing, or until the petition therefor shall be denied, unless this court shall otherwise order', does not operate to stay the consideration and determination of a petition for rehearing that is filed before the expiration of such fifteen day period. The purpose of the rule is to allow a defeated party a reasonable time within which to file 'a petition for rehearing'. When a party entitled to petition for rehearing has exercised his right and filed such petition, the question whether a rehearing shall be had is properly before the court.

2. In this case it is held for reasons stated in the opinion that the remittitur was not sent down inadvertently or prematurely, and that no valid ground has been shown for recalling the same.

George D. Smith, of Grand Forks, for motion.

Bangs Hamilton & Bangs, of Grand Forks, opposed.

PER CURIAM.

The plaintiff has moved 'that the Supreme Court recall the mandate issued in the two above appeals', which appeals were dismissed pursuant to the decision of this court rendered August 16, 1944 and reported in 15 N.W.2d 862.

The plaintiff brought the two above-entitled actions in the District Court of Grand Forks County to recover for brokerage commissions growing out of the sale of certain tracts of land in Grand Forks County. The two actions involve the same transaction. The prayers for relief are identical except that in one action judgment is sought against the Valley Investment Company alone, while in the other, judgment is sought against the Valley Investment Company, the Northwestern Trust Company, and Fred L.

Goodman. 'The plaintiff made a motion in each case that the two cases be consolidated and tried as one case. On February 3 1944 the court made an order in each case denying the motion to consolidate and also in the same order denied a motion that the cases be continued whereupon the plaintiff appealed to the Supreme Court in each case from the orders thus entered.' 15 N.W.2d 862. Counsel for the defendants in the two cases moved that the appeals be dismissed upon the ground that the orders attempted to be appealed from are not appealable orders. In a decision made and filed August 16 1944 this court sustained the motions and ordered the appeal in each of the cases to be dismissed on the ground that the order denying plaintiff's motion to consolidate the actions was not an appealable order. Such decision of the court is reported in 15 N.W.2d 862 and will be reported in Vol. 73 of the North Dakota Reports. The same day that the decision was filed, the clerk of this court, in conformity with the usual practice, transmitted to counsel for the respective parties a copy of the decision of this court and a notice reciting that 'an order has this day been entered' that the appeals in the two cases be dismissed, and further stating that 'under the rules of the court the defeated party is entitled to fifteen days from this date, within which to make, serve and file in this office, seven copies of petition for rehearing, during which period the remittitur is stayed.'

On August 28, 1944 counsel for the plaintiff filed a petition for a rehearing. On August 31, 1944 this court entered an order denying a rehearing. On that same day the clerk of this court made and transmitted a communication to counsel for the plaintiff reading as follows: 'In Nos. 6932-33, Swiggum v. Valley Investment Company, an order has today been entered denying your petition for rehearing. Remittitur will now go forward as soon as the same can be reached in the regular order of business.'

On September 2, 1944 the clerk of this court duly executed and attested the mandate or remittitur in each case and thereupon caused such mandate, together with the record on the appeals, to be transmitted to the clerk of the District Court of Grand Forks County. Thereafter the plaintiff made application in each of the cases for a change of place of trial. The applications were denied by the trial court and the plaintiff appealed to this court from the order denying the change of place of trial in each case. The appeals came on for argument, and on July 28, 1945, decision was rendered by this court affirming the order in each of the cases. The plaintiff filed a petition for rehearing of such appeals. The plaintiff also served notice of a motion that this court recall the mandate or remittitur 'issued in the two above appeals on the appeals from the orders denying plaintiff's motion to consolidate the two actions',--that is, the appellant served notice of motion that the court recall the mandate or remittitur made pursuant to the decision of this court rendered August 16, 1944 dismissing plaintiff's appeals from the orders denying his motion to consolidate the two actions, which remittitur was executed and attested by the clerk of this court on September 2, 1944, and thereupon transmitted to the clerk of the district court.

On August 17, 1945 this court denied the petition for rehearing of the appeals that were decided by the decision rendered July 28, 1945. Swiggum v. Valley Investment Co. and Swiggum v. Valley Investment Co. et al., 19 N.W.2d 569.

The motion to recall the mandate or remittitur came on for hearing before this court on October 23, 1945. Such motion was based upon the ground that the order of this court denying the petition for rehearing 'was prematurely and inadvertently entered.' In his motion appellant says 'that under the state law and the rules of the Supreme Court the appellant had fifteen full days within which to file a petition for rehearing and in which to file amendments thereto' and that 'as a consequence the Supreme Court had no legal right to rule in the matter or make any order with respect to the said petition for rehearing until after the expiration of the said fifteen days.'

At the time the order was entered denying the petition for rehearing on August 31, 1944 the Laws of North Dakota made no provision for petitions for rehearing, but the rules of this court provided that: 'A petition for rehearing may be filed if accompanied by seven copies of such petition, at any time within fifteen days after the decision in the case is filed. In all cases, the remittitur shall be stayed until the expiration of the time for the filing of petitions for rehearing, or until the petition therefor shall be denied, unless this court shall otherwise order.' Supreme Court Rule 15, 41 N.D. 695, 696.

The decision of this court on the appeals from the order of the district court denying the motion in each case to consolidate the two cases was rendered August 16, 1944, and the order denying the petition for rehearing was entered August 31, 1944, and the remittitur was executed and attested on September 2, 1944. It is the contention of the appellant that the Supreme Court 'had no legal right to rule in the matter or make any order with respect to the said petition for rehearing until after the expiration of the said fifteen days', and that:

'As said Order denying the petition for rehearing was made before it could be legally entered, the said petition has not yet been acted upon or decided under the rules applicable thereto. That, therefore, the mandate returning the said cases to the District Court was inadvertently issued. No mandate can ever issue until the petition for rehearing is regularly disposed of. No Supreme Court can ever make any Order disposing of any petition for rehearing before the expiration of the time for filing thereof as fixed by law.

'Any order or judgment entered by any Court before the date on which such action can legally be taken is premature and void.'

A remittitur is not itself a decree of the court. Its office is to communicate to the lower court the decision that has been made by the appellate court. 5 C.J.S., Appeal and Error, § 1958, p. 1487. In this state the remittitur, or notification to be given to the lower court, has been prescribed by the Legislature. The statute has remained without substantial change since its enactment as a part of the Revised Codes of 1895, and is embodied in Sec. 28-2730 of the N.D. Revised Codes of 1943, and reads as follows: 'The clerk of the supreme court shall remit to the court from which the appeal was taken the papers transmitted to the supreme court on the appeal, together with the judgment or decision of the supreme court thereon, within sixty days after the same shall have been made, unless the supreme court on application of either of the parties shall direct them to be retained for the purpose of enabling such parties to remove for a rehearing. In case a motion for a rehearing is denied the papers shall be remitted within twenty days after such denial. The clerk of the supreme court in all cases, except when the order or judgment is affirmed, also shall transmit with the papers so returned by him a certified copy of the opinion of the supreme court.'

Under the rules of this court and the notice transmitted to appellant's counsel, appellant had the right to file a petition for a rehearing at any time within fifteen days from the date of the decision. Under such rules he might file 'a petition for rehearing', but he was not given the right to file more than one petition. If he desired to file an amended or supplementary petition, that right could, and generally...