121 Iowa 607 | Iowa | 1903
Lead Opinion
There is no doubt but that an affirmance ought to be treated as a finality of all questions before the court, and probably the legislature is without power to make it otherwise. But there appears no tenable ground for denying the legislative power to provide for a hearing, even subsequent to an affirmance, of matters having a legitimate bearing on the controversy, which, owing to adequate reasons, have not been presented. The ground for new trial is quite as likely to be discovered after as before the appeal; an,jJ where the affirmance of the appellate court adds nothing to the existing judgment, except by way' of confirmation of the action of the trial court, there is no reason for regarding a judgment affirmed as any more sacred than one not appealed from after the period within which an appeal may be taken has expired. In either event it is no more nor less potential than a judgment of the district court. One is final in the same sense that the other is. Under the practice in Michigan the cause is sent back by remittitur to the trial court, and, where errors assigned are reviewed without passing on the merits, a new trial may be granted by the trial court after an affirmance. Reynolds v. Newaygo Circuit, 109 Mich. 403 (67 N. W. Rep. 529). Under section 4094 of the Oode, a petition to vacate or modify a judgment, based on grounds
Returning to the statute under consideration, it is to be observed that the only limitation prescribed is that of time. Had it been the purpose of the legislature to restrict the application to cases in which no appeal had been taken from the judgment entered on the first trial, this would doubtless have been mentioned. As previously remarked, the trial court will not be permitted to review the action of this court, either on errors considered or the merits, when passed upon, for to this extent its determination is final. But, aside from these, we see no impropriety in an inquiry and the awarding of a second trial, on good cause shown, if thereby justice will be promoted. Indeed, the manifest purpose of the statute is to safeguard' the investigation of titles to property of a permanent and enduring character, often doubly valuable because of the memories and traditions clinging about it, and to avoid, as far as practicable, any miscarriage of justice through1 error, oversight, mistake, misfortune, or other circum-' stance, though not legal ground for new trial in other
Dissenting Opinion
(dissenting). I am unable to agree either to the conclusion or to the reasoning of the majority in this case, and I especially dissent from the views expressed in the third division of the opinion.
Reduced to its last analysis, the question is, how ¡many trials may a defeated party have in this court? .'May he take advantage of a statute relating to new trials ■in the district court, and have an opinion of this court superseded and overruled, and the case again reheard, ¡after one petition for rehearing has been submitted and overruled? This application is based upon the same alleged errors committed by the trial court as on the original trial from which the former appeal was taken. Indeed, the abstract on that appeal was attached to, and made a part of, the application in this case. The petition in this case presents no new facts or propositions of law. It is conceded that the basis of this proceeding is the alleged errors of the court committed on the original trial, from which an appeal was taken, which resulted in an affirmance in this court. A petition for a rehearing was filed and overruled, but, nothing daunted, plaintiff proceeded to file his abstract in the trial court, and to ask that court to reverse this court because of error committed <on the original trial. This the trial court refused to do, ¡and, as I think, properly. But the majority say that, notwithstanding we have once affirmed the judgment and overruled a petition for a rehearing, nevertheless in actions of this kind there may be a second rehearing on the same ¡record, because, forsooth, the case was affirmed pro forma
From the earliest history of this court it has been the practice to issue 'proeedendoes in cases of affirmance unless a decreé is rendered in this court. Indeed, we have universally held that after appeal to this court the trial court loses jurisdiction. Stillman v. Rosenberg, 111 Iowa, 369, and cases cited. The appeal operates to give this-court jurisdiction until the final word is spoken, and when, spoken there is no power either in the legislature or in an inferior tribunal to annul or in any manner impair the final conclusion. A judgment of affirmance on motion is-just as sacred and as much res adjudieata as if on the merits. I think the majority fail to distinguish the doctrine of stare deeisis from that of res adjudieata. When a case is once adjudicated by the highest tribunal in the state, that should be the end of it, no matter what the reasons for the decision. The reasons given for a particular conclusion only become important when considering the question of stare deeisis. The majority, as I understand it, admit that, had we passed upon the questions Resented by the first appeal, that would have ended the matter. If that be true, the same result should follow an affirmance on motion, under the doctrine of Trescott v. Barnes and Finch v. Hollinger, supra. My views are so fully expressed by Orton, J., in his dissenting opinion in State v. Cir. Court, 71 Wis. 595 (38 N. W. Rep. 192), which was afterwards concurred in by the entire bench in Ean v. C., M. & St. P. R. R., 101 Wis. 166 (76 N. W. Rep. 329,) that I need not do more than refer to that learned exposition of the law, and to the cases therein cited. As illustrating the doctrine prevailing in Illinois, see Hawley v. Simmons, 102 Ill. 115; Smyth v. Neff, 17 N. E. Rep.
For these reasons, I respectfully dissent from the conclusions reached. I am authorized to say that Me. Justice Sherwin concurs in this dissent.