Dempsey v. Billinghurst

65 N.W. 427, 8 S.D. 86, 1895 S.D. LEXIS 11

Opinion

Kellam, J.

Respondent’s attorneys ask leave to file a petition for a rehearing of this case. The case was decided and the opinion filed October 28, 1895. 64 N. W. 1124; 7 S. D. 564. Under rule 24, which took effect April 4, 1893, the remit-titur was held in this court 30 days thereafter, when, no petition for rehearing having been filed, nor any application made for a longer stay of the remittitur, the case was regularly remitted to the trial court. Several days thereafter this application to present a petition for a rehearing was filed, the application itself being dated after the remittitur and case had gone from this court. Ordinarily, and without a rule upon this subject, a petition for rehearing may be made at any time during the term at which the case is decided, provided the case is still in the appellate court. The purpose of our rule was to avoid retaining the case in this court, to the manifest prejudice of the successful party, an unreasonable time after decision, and at the same time to give both sides ample time to know of the decision, and the grounds upon which it was based, so that either might present his claim for a rehearing. The rule has been in force 2i years, and, so far as we know, has been regarded as fair and satisfactory. It is well settled, and, it would seem, could hardly be otherwise in principle, that when the remitti-tur has gone down, without fraud, accident or inadvertence, the appellate court has lost its "jurisdiction of the case, and cannot recall it. Haynes, New Trials & App. Sec. 292 et seq., and cases cited. There is no claim in this case that the remit-ittur went down otherwise than in the usual and proper procedure under the established rule. For the reasons stated the application must be denied.