Lasier v. Lasier

47 App. D.C. 80, 1917 U.S. App. LEXIS 2598

• Court: Court of Appeals for the D.C. Circuit
• Decided: November 12, 1917
• Docket: No. 3029
• Status: Published

Opinion

Per • Curtam :

Is1 the'corrected decree such as should have, been entered under the testimony? This presents a question of fact only; questions of law are not involved. Forty-five witnesses were examined. To analyze their testimony and state the result would require pages without serving any useful purpose. It discloses that there was some fault on each side, but the preponderance of fault was on the part of the defendant ;• yet it. seems to us that, if both had shown a little more forbearance,— a desire to give and take in small matters, — they would have averted the disaster which unfortunately has come upon their young marital life. The presence of their little child, if nothing else, should be to them an irresistible plea for harmony and cause them to forgive and forget. The lower court was of this opinion, because it endeavored to bring about a compromise, of their differences, but without success.

We think that, upon a view of all the testimony, the decrete as changed on March 21, 1916, should be affirmed, unless there was error in making the change. The appellee cites as authority for the court’s action the following nrle of the lower court: “Clerical mistakes in decrees or decretal orders, or errors arising from any accidental slip or omission, may at any time be corrected by order of the court or of a justice thereof, upon petition, without the. form or expense of a rehearing.'’ We do not think that the rule applies. The appellant on December 23, 1915, noted his appeal in open court, and on December 24, 3915, filed the required appeal bond. This perfected the appeal (Chisholm v. Cissell, 12 App. D. C. 203; Taylor v. Leesnitzer, 220 U. S. 90, 55 L. ed. 382, 31 Sup. Ct. Rep. 371), and removed the decree from llie jurisdiction of the lower court to this court. After tliat it was not competent for the lower court to make any change in the decree. Nor did the rule in question, when correctly construed, purport to authorize it. The express purpose of the rule was to permit corrections to be made “without the form or expenso of a rehearing.” It therefore applied only to cases where reliearings could be granted by the' lower court. That they could not he so granted in a case ponding in this court must go without saying. Two courts cannot have jurisdiction in the same ease at the same lime. (Morrin v. Lawler, 91 Fed. 693; Anderson v. Comptois, 48 C. C. A. 1, 109 Fed. 971; Keyser v. Farr, 105 U. S. 265, 26 L. ed. 1025). The cases contemplated hy the rule were those in which an appeal had not been perfected. ¡Since the corrected decree was right, hut the court erred in making the correction after the ease had been appealed to this court, tbe decree is reversed, with instructions to the lower court to give the plaintiff a deeree similar in terms to that entered by it on "March 21, 1916; and as the error found by ns is one of form, and not of substance, tbe reversal is at the cost of the appellant. Reversed.