Tyson v. Whitaker & Son, Inc.
| Decision Date | 20 February 1980 |
| Citation | 411 A.2d 389 |
| Parties | Marcia TYSON et al. v. WHITAKER & SON, INC. |
| Court | Maine Supreme Court |
Kelly, Remmel & Zimmerman, Graydon G. Stevens, Portland, for plaintiffs.
Hewes, Culley, Feehan & Beals, Martica F. Sawin, Peter W. Culley, Portland, for defendant.
Before McKUSICK, C. J., and WERNICK, GODFREY, NICHOLS and GLASSMAN, JJ.
On motion for reconsideration
In our opinion dated October 19, 1979, Tyson v. Whitaker & Son, Inc., Me., 407 A.2d 1 (1979), we sustained plaintiff's appeal from an order of the Superior Court dismissing this action for lack of personal jurisdiction over defendant. Our mandate vacated the judgment of dismissal and remanded to the Superior Court to receive further evidence on the issue of "fair play and substantial justice." Id. at 9.
On February 6, 1980, defendant filed with this court a "Petition for Reconsideration," apparently intended as a motion under M.R.Civ.P. 75B(a). The motion, unsupported by brief or affidavit, states that it is based on the fact that the United States Supreme Court has recently addressed the identical issue of federal constitutional law which governs the Defendant-Appellee's rights in the above matter, and has resolved the issue in favor of the Defendant-Appellee's position. See World-Wide Volkswagen Corporation et al. v. Charles S. Woodson, --- U.S. ----, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980).
Thus, the defendant-appellee, on the basis of a Supreme Court decision announced over three months after our mandate issued in the Tyson case, asks us to reverse our decision and mandate. This we have no jurisdiction to do. We must deny the motion for reconsideration.
The general rule regarding this court's jurisdiction once its mandate has been issued to the trial court was stated in Ginn v. Penobscot Co., Me., 342 A.2d 270, 274 (1975):
Absent a statutory or rule provision to the contrary, the general rule is that, after an appellate court has determined the issues involved in the case submitted to it and caused its judgment in conformity with such determination to be entered and the case, together with the rescript of decision, to be remanded to the lower court, the appellate court thereafter has no power to reconsider, alter, or modify its decision. An appellate court, generally speaking, is without power to recall a mandate regularly issued for the purpose of correcting judicial error.
In Ginn, certain very limited exceptions to the general rule barring recall of a mandate were delineated:
We believe that the general rule . . . stands modified . . . to the extent of permitting the Law Court to protect the integrity of its own processes and allowing it to implement the generally recognized exceptions to the general rule. Indeed, an appellate court does not lose jurisdiction of the case and may recall its mandate for the purpose of correction, where there has been some irregularity or error in its issuance, as where it was issued contrary to the rules of the court, or where, by reason of a clerical mistake, it does not correctly express the judgment of the court (Kasal v. Kasal, 1949, 228 Minn. 570, 37 N.W.2d 711); as where the judgment transmitted by the appellate court, because of inadvertent error, mistake, fraud, or lack of jurisdiction, was not in fact the judgment of the court (Kosten v. Fleming, 1943, 17 Wash.2d 500, 136 P.2d 449).
Id. at 275. See Hodgdon v. Fuller, Me., 398 A.2d 798, 800 (1979); Rand v. B. G. Pride Realty, Me., 360 A.2d 519, 521-22 (1976).
In addition, this court has at times found it appropriate to clarify its previously issued opinion without making any change in its mandate. See Maine Central RR. Co. v. Halperin, Me., 381 A.2d 8 (1977); Hann v. Merrill, Me., 305 A.2d 545, 551 (1973). Those instances of opinion clarification, 1 however, do not alter the fact that the Law Court does not have jurisdiction to recall and alter a mandate except in extraordinary circumstances of error in connection with its issuance. See Ginn v. Penobscot Co., Supra at 275.
In...
To continue reading
Request your trial
-
State v. Thompson
...the judgment rendered by the court. See, e.g., People v. Stone, 93 Cal.App.2d 858, 860, 210 P.2d 78, 79-80 (1949); Tyson v. Whitaker & Son, 411 A.2d 389, 390 (Me.1980); Reeploeg, 81 Wash.2d at 546, 503 P.2d at 102-03. See generally 5B C.J.S. Appeal & Error § 1996, at 650-51 (1958). In the c......
-
Ouellette v. Sturm, Ruger & Co., Inc.
...by the concept of due process under the United States Constitution. Tyson v. Whitaker & Sons, Inc., 407 A.2d 1, 3 (Me.1979), 411 A.2d 389, 391 (Me.1980); Labbe v. Nissen Corp., 404 A.2d 564, 569 n. 4 The remaining issue involves the application of federal constitutional law to the facts of ......
-
Coolidge v. Judith Gap Lumber Co., Civ. A. No. 91-397-P-C.
...of the United States Constitution. 14 M.R.S.A. § 704-A(1).; Tyson v. Whitaker & Son, Inc., 407 A.2d 1, 3 (Me.1979), reh'g denied, 411 A.2d 389 (Me.1980). Due process in the exercise of jurisdiction over an out-of-state defendant requires the satisfaction of a three-prong test: 1) does the f......
-
Trenholm v. Madore
...its borders, even if those persons are not residents. See Tyson v. Whitaker & Son, Inc., 407 A.2d 1, 4 (Me. 1979), recons. denied 411 A.2d 389 (Me. 1980). next question is whether the plaintiff has established that Allstate "should [have] reasonably anticipate[d], or not be unfairly surpris......