39 Wis. 435 | Wis. | 1876
There were numerous defendants in this cause, respondents in this court, and tbe record was voluminous and complicated. Tbe appeal was_ argued at tbe bar for some five days, early in tbe June term, 1874, and was decided tbe last of May in tbe January term, 1875. Tbe latter term was not finally adjourned until July; so that tbe time for moving for a rehearing under tbe rule expired in June, 1875.
Tbe respondent Thomas Molloy now moves for leave to make a motion for rehearing. And tbe only question on tbe motion is, whether such leave should now be given. Tbe merits of tbe appeal are not before us, as upon a rehearing, but only tbe question whether tbe appeal should be now brought again before us for rehearing. And we take tbe occasion to say that parties failing to move in time for rehearing cannot, by a motion for relief from this failure, make an opportunity for themselves, as was done in this case against our protest, to argue tbe merits of tbe rehearing at tbe bar, which tbe rule prohibits when tbe motion is made in time. Tbe argument of such motions, as of all motions, must be confined to tbe merits of tbe motions themselves.
We did not understand counsel for tbe motion as expressly relying on sec. 38, ch. 125, R. S., to aid tbe right to move for rehearing now, on tbe ground of tbe party’s mistake, inadvertence, surprise or inexcusable neglect, in not making tbe motion in time. But bis argument indicated a reliance on that
The rights of the respondent making this motion were expressly passed upon by the court. Pringle v. Dunn, 37 Wis., 449. “ It is well established by the rules of the common law, that a court has no power to review its own judgment of a previous term; that is, as to all matters on which the mind of the court did act, or is presumed from the record to have acted, in the rendition of the judgment, it is precluded from again acting, at a subsequent term, and changing its opinions or altering its decisions.” Ætna Co. v. McCormick, 20 Wis., 265. This has been the constant rule in this state. See Scheer v. Keown, 34 Wis., 349, and several later cases. And this court forms no exception to the rule. Hungerford v. Cushing, 8 Wis., 324; Hill v. Hoover, 5 id., 386.
In this court, judgments within its appellate jurisdiction can be reviewed only upon rehearing granted upon motion-made within the rule. The original rule (3 Pin., 494) did,, and the present rule (3 Pin., 503) may, carry the right to-move for rehearing over to the tenn succeeding the judgment.. That works so far an exception to the general rule that this court cannot review its judgment at a subsequent term. But when motion for rehearing is not made within the rule, and even when made but not brought to a hearing at the term at which it is made, the court is powerless to review its own judgment. Pierce v. Kneeland, 14 Wis., 341. And so this court has üo power to review its own judgments on appeals after the term at which they are rendered, unless the power is carried over to a subsequent term by motion for rehearing; actually made within the rule. Of course this does not prevent the correction of mere mistakes in the entry of judgment. Hill v. Hoover, supra.
We were referred, on the argument of this motion, to several cases showing the practice of courts of original jurisdiction elsewhere. These have no application here. Since the-argument, we have been referred to Allerding v. Cross, 15 Wis., 530. RTothing in the report of that case is in conflict with the views here expressed, or with the cases cited in support of them. But it is true, as counsel suggests, that it appears by the record of that case that the time for moving for rehearing under the rule expired within the term of the judgment; and that leave to make the motion was granted at a subsequent term. The report of the case, and the opinion on the rehearing, take no notice of the difficulty, which was-greater than that which prevailed in Pierce v. Kneeland, re
Before cb. 264 of 1860, we are not aware tbat any statute fixed the time for tbe remission of appeal papers from this court to tbe courts below. Arid tbis court appears to have considered its jurisdiction over appéals to have continued, for some purposes, so long as tbe record actually remained here. Hopkins v. Gilman, 23 Wis., 512; Esty v. Sheckler, 36 id., 434. But tbe statute of 1860 requires tbe clerk of tbis court to remit appeal papers to tbe court below within thirty days after judgment here on tbe appeal, unless tbis court directs them to be retained for tbe purpose of a motion for rehearing. And when tbe papers are so remitted, all jurisdiction here of tbe.appeal ceases. Hopkins v. Gilman, Esty v. Sheckler, supra.
And we are obliged to bold tbat, even when tbe record is not actually remitted, tbe statute takes away tbe jurisdiction of tbis court over appeals after thirty days from judgment on them; unless tbe record is retained here by order of tbe court under tbe statute. Tbe statute itself regulates our jurisdiction; not tbe compliance or noncompliance of tbe clerk with
We must therefore hold that the court has lost all jurisdiction over the judgment on this appeal; and that we have no power to grant this motion, because it is made at a term subsequent to the judgment on the appeal, and after the time when the statute permits the record to remain here. If the judgment did injustice to the respondent making this motion, we deeply deplore that his own laches has left us powerless to correct it. The respondent was represented on the argument by two counsel of ability and learning. His case was specially presented orally and in a printed brief. All the points made for him were carefully considered and decided; and we have no doubt correctly. It is now claimed for him that another point should have been made on his behalf, which was overlooked by his counsel, and which rested on facts not appearing in the printed case. If that be so, we regret it on his account and on our own; but we cannot hold ourselves responsible for it. In the decision of causes before us, we must .necesssarily depend largely on the presentation of them by counsel. The duties of the bar are almost or quite as essential to the intelligent administration of justice, as the duties of the bench. With all the aid we receive from the bar, we are barely able, by incessant labor, to keep the business of the court from running in arrear. We endeavor faithfully to investigate causes before us. If we find points not raised at the bar, we pass upon them. But if, as a rule, we should de
By the Court. — The motion is overruled.