4 Wend. 188 | Court for the Trial of Impeachments and Correction of Errors | 1830
Lead Opinion
On the next day the following opinions were delivered:
When a remittitur has regularly issued, and the proceedings have been sent down to the court below, this court has no longer any control over the cause; the court below has become re-possessed of it, and the jurisdiction of this court over it has ceased. It is otherwise when the remittitur has issued irregularly. When issued irregularly, in contemplation of law, the proceedings remain here, and the order or decree made will of cohrSe be superseded; the remittitur issued not being considered the act of the court. Here, however, it was the act of the court. The appellants not having appeared to argue, the decree appealed from was affirmed in pursuance of the rules of the court, and the remittitur regularly issued. If, under these circumstances, this cause can be re-called, then a cause which has been remitted to the court below may be reinstated in this court after argument and decision, which it is presumed will not be pretended. The proceedings brought up by the appeal have been remitted to the court of chancery, and remain in that court; they are no longer here, and it is not competent to this court to make any order on the subject. There is nothing in the objection that the remittitur ir
Dissenting Opinion
said that he did not concur with his brethren that the power of this court to supersede a remittitur
Concurrence Opinion
concurred in the opinion pronounced by the judges of the supreme court, that there could be no question of the power of this court to supersede a remittitur irregularly issued; or where the party had proceeded irregularly in obtaining the order of the court, or where the judgment of the court was misconceived by the clerk and erroneously entered. In such cases the proceedings he said would be considered as remaining in this court, and the remittitur would be recalled; but where the proceedings are regularly remitted to the court below, the jurisdiction of this court is gone and no order can subsequently be made here. In the case of Safford v. Stevens, alluded to by the judges, double costs had been awarded, when the party was entitled to .but single costs; and after the remittitur had issued, a motion was made to modify the judgment entered in this court, which was refused because the record was not here. On
The Chancellor also concurred in the opinion that there was no irregularity in respect to the costshe expressed his regret, that under the circumstances of the case the party could not be relieved, but considering this court as having lost all jurisdiction of the cause, he was of opinion that the motion to re-instate it in this court must be denied.
Whereupon the motion was denied.
Concurrence Opinion
concurred with the chief justice in opinion that the absence of the council was satisfactorily accounted for, but he thought that both upon principle and authority this court had no longer any control over the cause. This court is entirely appellate, and when proceedings brought here by appeal or writ of error are regularly remitted to the court below, the jurisdiction of this court is gone. If a remittitur issues irregularly, or if the party has irregularly obtained the order of this court, the remittitur may be superseded. In such case, in judgment of law, the proceedings remain here. (Waters v. Travis, 8 Johns. R. 566,)
It has been repeatedly holden in this court, both collaterally and when the question has directly arisen, that after a remittitur it is too late to correct an error, even in the judgment of the court. In the case of Murray v. Blatchford, (2 Wendell, 221,) this court modified their decree after the remittitur had been carried to chancery; but it had not been received there, and on that ground it was held that the cause might be considered as still remaining here, and therefore the decree was corrected. In Evertson v. Booth, (20 Johns. R. 500,) Chief Justice Spencer expressed his doubts whether a decree of this court could be modified after it was made, although the transcript had not been remitted. In the winter session of 1829, this court refused to supersede a remittitur in the cause of Safford v. Stevens, on the ground that jurisdiction of the cause had been lost. Upon that occasion, the case in Cowper was presented for consideration, but the court refused to grant the motion. He also concurred in opinion with the chief justice, that the sending down the remittitur previous to the taxation of the costs was not irregular.