Thе defendant was convicted of the crime of embezzlement, in the district court of Cavalier county, about the middle of July, 1912, and about the 22d day of July, 1912, perfected an appeal to this court from the judgment. On December 3, 1912, the state served notiсe upon counsel for appellant, notifying and requiring him to file with the clerk of this court the record on appeal in this action within twenty days after the date of said service, and that in case of his failure so to do the state would apрly to the supreme court, for an order dismissing such appeal for failure to file the return as required by law, and for want of рrosecution. Appellant failing te file the return, the state duly submitted a motion, on the 3d day of February, 1913, for an order of this cоurt dismissing such appeal and affirming the judgment of the district court sentencing said defendant. On said 3d day of February, 1913, the defendant aрpeared by counsel and opposed the granting of the state’s motion, setting forth by affidavit, various matters claimed tо excuse his failure to transmit the record and prosecute his appeal.
On due consideration this court, on the sаme day, entered an order dismissing the appeal unless the defendant should cause the record thereon, togethеr with abstract and brief, to be filed in this court and served on counsel for the state not later than March 1, 1913; and providing that, on suсh filing and service, the cause should stand for argument at,
The court has carefully considered thе extensive showing made by appellant. It would unduly extend this opinion to recite even the substance of such showing. We only nеed say that it discloses the fact that the defendant departed from this state and took up his residence in Minnesota, without informing his counsel of that fact, and that he appears to have taken no precautions to- keep advised regarding the progress of his litigation, and did not instruct his counsel where to reach him in case of need; and that, at least in рart, the failure to prosecute the appeal has been occasioned by his counsel being unable to reach him promptly. The grounds alleged also include the engagement of his counsel on other imperative duties and serious illness of counsel,. as well as the failure of the stenographer of the district court to speedily transcribe the rеcord. Counsel takes upon himself much of the responsibility for the delay; but, after carefully examining the showing made by both sides, wе are satisfied that counsel served his client diligently and faithfully, and that the defendant himself is the one responsible for the failurе to transmit the record in accordance with the ■original order of this court. Had he kept his counsel advised of his whereabouts, and had he not departed from the state, he would have been in position, on the first and second applications, to have asked for leniency.
All these things were considered on the former applications. The basis for thе appeal was also considered. We were advised by counsel for appellant that he relied for a reversal on the form of an allegation or recital of the information. The imperfection, if it existed, was largely technical in its character. We then examined authorities on the subject, and became satisfied that there was no merit in the assignment
There, however, on this application, arises another question which did not exist on the submission of the former applicatiоns. The remittitur was transmitted by the clerk of this court on the 10th day of March, 1913, and in due course must have reached the trial court lоng before this application was submitted, and if so this court is no' longer possessed of jurisdiction over the case, and hаs no lawful power to review its prior orders in the absence of fraud in securing the transmission of the remittitur, or mistake, or inadvertence in transmitting it. There must be an end to litigating a question, at some point of time, and if this court was at liberty to review and re-review and review again its decisions in the same cause in which they were made, our time could be fully occupied in the reconsideration of questions supposed to have been long since settled, without taking up new litigation. This question has been passed upon by other courts. We call attention to a few of the authorities. Leese v. Clark,
To the same effect see: Blanc v. Bowman,
As to exceptions to this rule consult: Nystrom v. Templeton,
Tbe application is denied.