Rowland v. Kreyenhagen
Before: Sanderson
Synopsis
Dismissal of Appeal—Effect of.—A dismissal of an appeal by the Supreme Court is, in legal effect, an affirmance of the judgment of the Court below, as conclusive and binding upon the parties and the Court as a direct judgment of affirmance, unless the appellant obtains an order setting aside the dismissal and reinstating his appeal before the adjournment of the term.
Remittitur—-Effect of Issuance.—When a remittitur has been duly and regularly issued from the Supreme Court, and filed in the Court below, and all the proceedings have been regular, the Supreme Court loses all jurisdiction over the case, and from that time can exercise no further control.
Kbaud in procuring Dismissal of Appeal.—If, however, any fraud or imposition has been practiced upon the Court or the opposite party by the party procuring the dismissal, or the order of dismissal has been improvidently granted upon a false suggestion, or under a mistake as to the facts of the case, the appellate Court will recall the remittitur and stay proceedings in the Court below, and assert its jurisdiction even after the adjournment of the term, upon the ground that its jurisdiction cannot be divested by an irregular or an improvident order, and that the order is a nullity.
By the Court, Sanderson, C. J. On the 3d day of June, 1863, appeals were taken in these actions from the Fourth District Court. On Saturday of the first week of the following October term of this Court, the transcripts not having been filed, the appeals were dismissed upon the certificate of the Clerk of the Fourth District Court that the fees for making up the transcripts had not [57]been paid or tendered, and the transcripts had not been delivered to appellant’s attorney. As this Court was about to adjourn, an order was made and published that motions to reinstate cases dismissed, pursuant to the third and fourth rules of the Court, might be made on the first Tuesday in November following, and directing that remittiturs, in such cases, should not issue until after that time. About the last of November the remittiturs in the two cases under consideration were issued, and filed in the Court below, and judgments were entered thereon and executions issued. On the 20th day of December following, Mr. Justice Crocker and Mr. Justice Norton, being in San Francisco, signed an order directing the Clerk of the Fourth District Court to return the remittiturs to the Clerk of this Court, and further directing the attorney for respondent to show cause before this Court, at a time therein designated, why the orders dismissing the appeals should not be vacated, and the cases reinstated and placed upon the calendar of this Court, on the ground that said orders were obtained upon false suggestion and mistake, and were improvidently granted; and further directing that all proceedings in the Court below be stayed until the further order of the Court. At the hearing the late Supreme Court vacated the orders of dismissal, and reinstated the appeals. A petition for a rehearing was filed, which was granted by the present Court, and has been had.
The third rule of this Court provides, that if the transcript be not filed within the time prescribed by the second rule, the appeal may be dismissed, ex parte, during the first week of the term, and that such dismissal shall be final and a bar to any other appeal in the same case, unless the appeal be restored during the same term upon good cause shown, and upon notice to the opposite party.
Under this rule a dismissal, in legal effect, must be held [58]
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