This case was decided by an opinion filed August 23, 1932. On November 2, 1932, the judgment here was modified and a rehearing refused. The case is now before us on a motion to recall the mandate, accompanied by an extraordinary petition for a rehearing.
The prayer to recall the mandate should be denied and the extraordinary petition for a rehearing should be refused.
The record shows that a final decree was entered by the Chancellor holding that the bill was without equity and ordering it dismissed without prejudice. The Chancellor in entering that decree expressly stated in it that *Page 507 he regarded it as unnecessary to consider either the master's report or the exceptions thereto. Thus there was eliminated from consideration, by the very decree itself, all of the testimony which had been taken in the case and reported by the master.
The Chancellor also held in his final decree that it appeared that there is paid into the registry of this Court the sum of seventy-five hundred dollars by the complainants herein as an installment of rent due the defendant on the 15th day of February, 1931." Having reached the conclusion that the deposit in the registry of the Court had been paid in as rent, rather than deposited as security for the rent, the Chancellor who signed the final decree, ordered that money paid over to the defendant summarily. We say summarily because the Chancellor himself had just before that expressly recited the fact that he had dismissed the bill without considering either the master's report or the evidence.
This Court disagreed with the Chancellor's holding as to the precise purpose of the deposit, and in the opinion first filed in this case we expressly held:
"It appears from the bill that a tender of the money was not made for the purpose of meeting the installment of rent due on the 15th day of February, 1931, in the event the suit should be dismissed, but that it was deposited with the intention, as we gather it from the allegations of the bill, of having the differences apparently existing between the lessor and lessees adjusted," etc.
The bill having been dismissed because of insufficiency of the complainants' bill to state an equitable cause of action, the money now remains in the registry of the Court, not as a tender for summary disposition, but to be disposed of as a fund in hand "as may seem proper and meet" in accordance with the order under which it was deposited. Such fund being in hand, it is within the jurisdiction *Page 508 of the Court in whose custody it is, to entertain appropriate proceedings for its disposition, not summarily, but according to equitable principles for the purpose of making restitution to the defendant for its loss occasioned by an improvident injunction which had been granted on an insufficient bill.
A court, having, by its own erroneous act, occasioned a wrong, possesses an inherent and summary jurisdiction to afford the redress, without reference to the peculiar nature of the controversy which it had erroneously determined. This is a power which is as much to be exercised where the same court abrogates its own erroneous decision, as where it is done pursuant to a judgment of reversal by an appellate court. The power of a court to repair the injury occasioned by its own wrongful adjudication is not derived from the mandate of an appellate court, but is an inherent power flowing from the judicial function exercised in deciding a judicial controversy under the law. Where restitution is sought at law, the remedy is usually by scire facias, but where it is sought in equity, redress may be ordered by a decretal order, founded upon a rule to show cause, or upon motion after notice to the adverse party. The duty of the court to repair its own wrongs is usually regarded as mandatory. See cases cited with approval by us in Hazen vs. Smith, 101 Fla. 767, 135 Sou. Rep. 813. See also Fleming vs. Reddick, 5 Gratt. (Va.) 272, 50 Am. Dec. 119; Gregory vs. Litsey, 9 B. Monroe (Ky.) 43, 48 Am. Dec. 415; F. E. C. Ry. Co. v. 77 Fla. 577, 82 Sou. Rep. text 182.
The deposit made in the court below was of an amount equal to the then due installment of rent due and was expressly made "subject to the further orders of the court in this cause." As a result of that deposit, the complainant was enabled to obtain from the Chancellor an interlocutory order restraining complainant from enforcing *Page 509 a forfeiture of the lease, and from filing proceedings at law, or otherwise interfering with possession by the complainant of the premises described in the amended bill of complaint. The Court when it entered the order and conditioned it upon deposit of the amount of rent due as security, no doubt anticipated that a setting aside of the injunction would entitle the defendant to an award of restitution in addition to having an action on the injunction bond, especially when it is observed from the record that the same order which granted the injunction and required the deposit, also overruled a demurrer that then challenged the sufficiency of the bill to support the award of any relief at all.
The probability that a further consideration of the case by the Chancellor in the light of the opinions heretofore filed by this court, will result in a decision on his part to allow restitution to the extent of the whole $7500.00 on deposit, presents no excuse for a failure to observe the requirements of the practice in properly arriving at whatever award is made, neither does that likelihood call for any further rehearing by this Court.
Costs incident to an appeal in equity are awarded by the judgment of the appellate court and are usually so apportioned as to do equity, where there are special circumstances which require that such costs do not follow the judgment. Grand Union Tea Co. vs. Dodds, 164 Mich. 50, 128 N.W. 1090, 31 L.R.A. (N.S.) 260.
If the appellees feel themselves aggrieved as to the costs which have been taxed against them by the Clerk in accordance with the usual practice prevailing here where no special order on the subject is made by the Court, a motion to tax or retax such costs is always in order during the term of this Court at which the case was finally disposed of. And a recall of the mandate, or the award of a rehearing, is not necessary for the consideration *Page 510 by us of an appropriate motion for taxing or retaxing the costs incident to, and occasioned by, our own judgment on the appeal. Shepard vs. Rand, 48 Me. 244, 77 Am. Dec. 225.
Motion to recall mandate denied.
BUFORD, C.J., AND WHITFIELD, ELLIS, BROWN AND DAVIS, J.J., concur.
TERRELL, J., not participating.