Blanc v. Bowman

Per Crocker, J. This is a motion by the appellant to set aside the order of this Court affirming the judgment of the Court below, [25]and proceedings subsequent thereto, both in this Court and the Court below. The ground of this motion is that the judgment ivas rendered without the concurrence of two of the Justices of this Court who were present at and heard the oral argument of the case. It is founded upon the affidavit of the appellant, which sets forth, substantially, that the case Avas orally argued before Justices Field and ISToetoh, in the absence of Justice Cope, that no other argument has been had except the filing of printed briefs; that the case Avas decided by Justices Field and Cope, Justice Uoetos" taldng no part in the decision; that a remittitur has been sent to the Court beloiv and a judgment entered thereon, on which the defendants are about to issue execution.

Sec. 10 of the act organizing this Court provides that “ the presence of two Justices shall be necessary for the transaction of business, excepting such business as may be done at chambers; and the concurrence of íayo Justices who have been present at and heard the arguments shall be necessary to pronounce a judgment. If tAvo ayIio have been present at and heard the arguments do not concur, the case shaE be reheard.”

The counsel for the appeEant admitted, on the argument of this motion, that the counsel for both parties agreed with Justice Cope, before the case Avas argued, that he might participate in the decision, although he should not hear the oral argument, and under this agreement he left for San Francisco and was not present Avhen the case Avas argued and submitted. It seems' that Justice Cope had heard the argument in another case which involved the same question, and as the counsel intended to and did file elaborate briefs, there Avas the less necessity for his presence Avhen this case was oraEy argued.

It has been repeatedly and uniformly decided by this Court that it loses aE control and jurisdiction over a case after the remittitur has been filed in the Court below. (Grogan v. Ruckle, 1 Cal. 194; Mateer v. Brown, Id. 231; Leese v. Clark, 20 Id. 387.) In the last case this Court says: “ The Supreme Comt has no appeEate jurisdiction over its own judgments; it cannot review or modify them after the case has once passed, by the issuance of the remittitur front its control. The Court cannot recall the case and [26]