Thomas J. Chambers vs. Henry Hodges, 3 Tex. 517

Mr. Chief Justice Hemphill, upon the application for a rehearing, delivered the opinion of the court. An application was made at the last term to have the judgment, rendered in this cause at a former term, reconsidered. And we then stated, in substance, that the question of the authority of this court to reconsider a judgment given at aformer term, being for the first time presented, and being important in practice, the application would be granted, in order that the subject might be fully considered, and the question settled for the government of all future causes.

The cause was argued some weeks since by counsel for the defendant in error (the plaintiff not being represented), and we now proceed to deliver the opinion of the court upon the point presented and reserved for consideration. The jurisdiction of this court is exclusively appellate, but its revisory power is to be exerted, not over its own judgments, but over those of inferior jurisdiction.

These it has the power to affirm, reverse and reform, or to remand the cause-for a new trial and more definite decision; but the statute has conferred upon it no authority to revise its own judgments upon the merits, or to affect any material modification in any material thing therein determined. There must be some period at which litigation shall cease, and controverted rights be^, formally disposed of and settled; and this period seems, on principle, to be contemporaneous with the accomplishment of the act for which the power has been exerted.

The statute forbids no such conclusion,- and we may safely hold that when the judgment of the court is fully settled, its minutes entered and authenticated as a record, and the term is closed, the court has no further power over the decree for the purpose of revision or modification upon tifie merits; and that the matters therein disposed of are finally settled, and the rights adjudicated irrevocably concluded and established.

This limitation upon the authority of the court will not prevent the correction of clerical errors or mistakes, or defects of form, or the addition of such clause as may be necessary to carry out the judgment of the court or to declare a judgment null and void which was rendered in a case not legally before the court. These doctrines are in entire conformity with the principles established in decided cases of the highest authority. In the case Ex parte Sibbald vs.

The United States [12 Peters, 492], it was declared that the supreme coui’t had no power to review their own decisions, whether in a case at law or equity. That no principle was better settled, or of more universal application, than that no court can reverse or annul its own final decrees or judgments for errors of fact or law, after the term in which they have been rendered, unless for clerical mistakes [3 Wheat. 591; 3 Peters, 431]; or to reinstate a cause dismissed by mistake [12 Wheat. 10]; and that no substantial change or modification could be made affecting the judgment in any material thing.

To this rule, as a general one applicable to all courts, bills of review in equity and writs of error coram nobis at law were stated to be exceptions. That inferior courts could not vary the decree, or examine it for any other purpose than execution, or give any other or further relief, or review it upon any matter decided on appeal for error apparent, or intermed-dle with it further than to settle so much as has been remanded. That after a mandate, no rehearing has ever been granted in the House of Lords [4 Dow. P.

C. 157]; and, on a subsequent appeal, nothing is brought up but the proceeding subsequent to the mandate. [5 Cranch, 316; 7 Wheat. 58, 59; 10 Wheat. 443.] In the case of The People ex relatione The Attorney General vs.

The Mayor and Aldermen of the City of Hew York [25 Wend. 253], an application was made at the next term after the decision, for a rehearing, and the question of the legal and constitutional rights of the court to open and reverse its judgments was fully considered; and it was held that the court had no legal right, or power, to grant a rehearing-upon a writ of error after a final judgment has been pronounced, upon the merits of the case, and has been regularly settled and entered of record in the form required by law.

It is stated that no rehearing has been granted in the house-of lords, upon writs of error, for several hundred years past;, that upon appeals from the court of chancery, the house of lords exercised” the power of granting rehearings down to the latter end of the 17th century; that since that time, a case had. not been found in which a rehearing was granted, even in an equity case, upon the merits. But in some few cases, mere defects in form have been corrected, or a new clause added to the decree, to carry out the judgment of the house of lords upon the appeal.

In the opinion, reference is made to “ Sydney on-Appeals,” and “Palmer’s Practice of the House of Lords,” and it is stated that these writers consider it the settled-practice in the house of lords for nearly a century and a half past, that there can be no rehearing or review of the cause upon the merits after the minutes of the judgment have been settled and directed to be entered. That, according to Sidney, when the minutes of an order have been read at the table of the house of lords, it is considered final and unalterable, even upon appeals from chancery. In Bernal vs.

The Marquis of Donegal, where a mistake, in drawing up the order on appeal, was corrected, it was said by Lord Redesdalb that the judgment upon the merits could not be reversed, although from misapprehension of counsel, in supposing that the case would be disposed of upon a matter of form merely, the merits of the case had not been fully argued by such counsel at the hearing.

It was also stated as the uniform practice of the court of errors in New York, so long as the writer of the opinion had been a member, to refuse an application for a rehearing after the final judgment of the court has been drawn up and settled; although as to mere clerical errors and mistakes of form only, the order has been eonsid-ered amendable, so long as the remittitur remained under the control o'f the court.

"We have referred to this case the more fully as the works treating of the practice in the house of lords are not accessible to the court, and perhaps not to the profession generally, and because the application is parallel to the one before the court. In the case of Thomas Jackson et al. vs. Wm. E.

Ashton [10 Peters, 481], it was held that after a case has been dismissed for want of jurisdiction, the pleadings having been technically defective, the court will not, at a subsequent term, allow them to be amended and the case to be reinstated on the docket, as this would be, in effect, a reversal of the former decree; and that the court had no power over its decrees, after the term had passed, and the cause has been dismissed, or otherwise finally disposed of. [See Fontenbery vs.

Foquer et al. 5 Arkansas Rep. 202.] On Ex parte Anderson Crenshaw [15 Peters, 119], the supreme court of the United States declared a judgment, rendered at a former term, null and void, and revoked their mandate issued to the circuit court, on the ground that the appellee, having not been cited, the case was not legally before the court, and the judgment, for want of jurisdiction, an absolute nullity.

This is the only exception to the practice in that high tribunal, of refusing, after the term is past, to re-examine and reform, or reverse, their judgments; and this was founded on their want of jurisdiction over the cause, and the consequent absolute nullity of the judgment. It will be unnecessary to refer to other authorities, as these abundantly prove that courts of dernier resort have no legal power to revise and materially modify their judgments rendered at a previous term.

One of the grounds of application in this case, and upon which it is supposed that we are not precluded from judicial cognizance of the former judgment, is, that the mandate of the court was dated one year after the time of its issue. This may be good ground for revoking the mandate and ordering another to issue, and might induce the court the more readily to correct clerical errors or mistakes, but would confer no authority to revise the merits of the cause, or materially modify the judgment.

The power of the court, for that purpose, ceases after the expiration of the term in which the judgment has been rendered. [Coke on Littleton, 260.] The record in this cause was filed in January, 1844, and a writ of certiorari was ordered at the succeeding July term of the court. It was the duty of the appellant to have brought up a complete record in the first instance, and, at all events, it should have been perfected at the next term. Had the certiorari been disobeyed, a mandamus should have been applied for, and, on proper showing, would have been obtained.

Subsequent to the judgment of this court, and previous to the application for a rehearing, the plaintiff seems to have had no difficulty in procuring a certified copy of the matter in which the transcript was supposed to be deficient. It maybe proper to state that had this additional matter been sent up, the aspect of the cause would not have been altered, as the motion for a new trial was not made in due time, and if it had been, the circumstance would have been wholly immaterial so far as this application is concerned.

The judgment of this court, in af-firmance, did not, in any degree, depend upon the fact of whether a motion for a new trial had, or had not, been made. One of the defects for which the certiora/ri was obtained, viz.: the want of a certificate of notice to the defendant in error, was cured by his voluntary appearance. The applicant seems to suppose that the action of this court, in awarding damages as for a frivolous appeal, was founded upon some improper representations of the counsel of the opposite party that the cause was brought here for delay.

This supposition arises from a misapprehension of the practice of the court. Where there are no bills of exceptions, statement of facts, nor error suggested or apparent on the record, it is the duty of the counsel to suggest delay; and, even if that should be omitted, it is usual for the court, under such circumstances, to award the damages authorized by law in cases of frivolous appeal. The cause was for more than three years on the docket before the rendition of judgment.

The grounds for reconsideration, viz.: the want of authority in the agent to confess judgment, and the incompetency of the court to enter the same for the cause stated, should have been assumed at the trial. The judgment was not a nullity, and could not be treated as such, nor could a reversal be expected, when no objections to its validity, or even to any alleged errors, were presented to the court by brief or otherwise. All these objections must now be regarded as having been adjudged and disposed of, and as no longer open to judicial examination or revision by this or any other tribunal.

The application for a rehearing appears, upon the minutes and the docket of the court, to have been granted. But the opinion, delivered at the same time, shows clearly that the sole object of the order was, that the question of the power of the court to revise the judgments of a former term might be fully argued and considered. Several applications of a similar character had been made, and it was deemed proper that a question, then for the first time presented, and involving such important considerations, should not be determined without full opportunity for investigation and deliberation.

Under a rule of court, applications for a rehearing are directed to be presented at chambers, but in this case argument was desired in open court, and the order was made for this purpose, and to this extent only was it intended to operate. But from the entries it would appear that the application had been granted, and not that an argument only had been ordered, as was designed and intended by the court, and it is deemed advisable that the necessary correction should be made.

It is ordered, adjudged and decreed that the order granting a rehearing in this case- be set aside and reversed, and that the application for the same be refused; that the mandate formerly issued be revoked and annulled, and that a mandate do now issue, to the end that the judgment of this court may be observed and fully executed.. When this opinion was prepared, I had no doubt, that a writ of certiorari Tsad been issued.

It so appeared from the transcript of the entries of previous terms on the docket of 1848; and of this impression was the appellant or his attorney at the December term, 1846, as is evident from his motion on the 18th December, 1846, for an alias certiorari. There is a probability, however, that this may have been a mistake. The motion for a certiorari was made at the June term, 1844, and also a motion for a citation. The latter is marked granted, but the disposition of the former is not shown, at least by the entries on the docket, and the writ may probably not have issued.

There was a subsequent application for a rehearing, in which the attention of the court was specially directed to the facts as stated, but that document is not before me; nor is any part of the record to be found in the clerk’s office, and this note is •written upon such facts as appear from the entries on the court docket.