Section 4690 C. G. L., 2961 R. G. S., provides that the Supreme Court shall hold two terms in each year, commencing, respectively, on the second Tuesday in January and June. In accordance with this statute a regular term of the Supreme Court began on June 9, 1931.
On July 21, 1931, judgment was entered in this cause reversing a decree of the Circuit Court of Dade County in a suit for foreclosure of lien and directing that a decree be entered by the Circuit Court for the complainant in the Court below. The original decree was for the defendant and appellee, St. Stephens Protestant Episcopal Church, Inc. On August 15, 1931, a petition for rehearing was filed by the appellee. This petition was in the form and filed within the time required by the rules of this Court. On September 1, 1931, said petition for a rehearing was denied by a majority of the Court. On September 16, 1931, mandate was issued in accordance with this Court's judgment of reversal. Thereafter said mandate was duly filed in the Circuit Court of Dade County. On November 13, 1931, appellee filed in this Court its motion *Page 695 to recall the mandate heretofore sent to the Circuit Court of Dade County and that all proceedings thereunder be stayed in order that this Court might give further consideration to the judgment of reversal for the purpose of rehearing and modifying it to accord with the law and justice of the present cause.
Appellee's motion to recall the mandate and reconsider and modify or reverse the judgment of reversal which was entered by this Court on July 21, 1931, is proposed by the appellant. As grounds for such opposition the appellant contends that after this Court denied the appellee's petition for a rehearing and issued its mandate thereon and such mandate was duly lodged in the Circuit Court for Dade County that all jurisdiction of this Court absolutely ended at the time the mandate was lodged in the lower Court and that this Court has no jurisdiction to order that such mandate be recalled for the purpose of reinvesting itself with power to have further proceedings with respect to the appeal which was finally determined according to the judgment of this Court entered July 21, 1931, and the denial of a rehearing on September 14, 1931.
In support of the contention that this Court has no jurisdiction to recall the mandate under the circumstances, appellant cites and relies upon the cases of Lovett v. State,29 Fla. 384, 11 So. 176; Brown v. State, 29 Fla. 494,11 So. 181; and Merchants National Bank v. Grunthal, 39 Fla. 388,22 So. 685.
But the question now before the Court is whether or not the jurisdiction of this Court ends before the expiration of the term, at the time the mandate is lodged in the lower Court, the time for rehearing having expired, or a rehearing having been applied for and been denied in due course.
It is generally held, in the absence of statute, that the power of an appellate court over its judgments, like that of courts generally, persists to the end of the term at which *Page 696 the judgment is rendered, and then absolutely terminates. See Ott v. Boring 131 Wis. 472, 111 N.E. 833, 11 Ann. Cas. 857; Franklin Co. vs. Mackey, 158 N.Y. 683, 51 N.E. 178.
For the purposes of the present motion, which is an extraordinary one to recall the mandate and grant a rehearing with regard to a judgment rendered in a case decided at the present term, it has been assumed that the judgment of this Court reversing the decree of the Circuit Court was erroneously entered by this Court, at least to the extent that it directs a particular decree to be entered in favor of the appellant.
If that proposition be true (which, of course, is not decided but only assumed for the purpose of the present motion), the question which we must determine narrows itself down to the proposition as to whether or not the Supreme Court of Florida has jurisdiction or power to modify or change its own judgment of reversal during the term at which such judgment was rendered, when it is made to appear to this Court that it has committed an error which requires such change of its judgment in order to prevent a miscarriage of justice, even though a mandate has been issued and lodged in the Circuit Court.
To hold in the negative would be to announce the remarkable doctrine that errors committed by the Supreme Court of Florida are the only errors in the entire scheme of government for which no remedy can be found, where relief therefrom is seasonably applied for by an injured party. To hold to such a rule would be to declare that the Supreme Court of Florida has power to correct the errors of all other tribunals and departments of the government, while faithfully adhering to and perpetuating its own.
As late as the case of Washington vs. State, 92 Fla. 740,110 So. 259, opinion filed October 12, 1926, this Court said: "It is not necessary for us now to determine the question *Page 697 as to whether or not the jurisdiction of this Court ends before the expiration of the term, at the time the mandate is lodged in the lower court, the time for rehearing having expired." This declaration found in the opinion of MR. JUSTICE BROWN in that case would seem to imply that the Court did not consider that the case of Merchants National Bank v. Grunthal,supra; Lovett v. State, supra; and Brown v. State, supra, relied upon and cited by the appellant in this case were in point, or controlling, on the proposition as to whether or not the jurisdiction of this Court ends before the expiration of the term, at the time the mandate is lodged in the lower court, merely because such mandate has been issued and filed in the court from which the appeal was taken.
But, be that as it may, a majority of the Court have reached the conclusion that the correct rule, which should be recognized and applied in such situation, is that the jurisdiction of this court, like the jurisdiction of courts generally, persists to the end of the term and then terminates, but that during the term at which a judgment of this Court is rendered, this Court has jurisdiction and power which it may exercise, as the circumstances and justice of the case may require, to reconsider, revise, reform or modify its own judgments for the purpose of making the same accord with law and justice, and that it has power to recall its own mandate for the purpose of enabling it to exercise such jurisdiction and power in a proper case.
Some members of the Court are of the opinion that the three cases cited and relied upon by appellants hold to the contrary, and that they are accordingly in point and should be followed here. Other members of the Court are of the opinion that our three previous cases decided a different point and were not intended to hold that this Court loses the power to control its own judgments during the term at which they are rendered inasmuch as such *Page 698 power is a power which is universally recognized to reside in courts generally.
But a majority of the Court as at presnet constituted, are of the opinion that if the three Florida cases* previously cited and relied upon by the appellant are to be construed as holding that this Court loses jurisdiction over its own judgment before the expiration of the term, at the time the mandate is lodged in the lower Court, that such holding is contrary to the holdings of the better reasoned cases on the subject, and therefore should be overruled insofar as the same may conflict with the generally recognized law on the subject of jurisdiction of appellate courts. This rule is to the effect that jurisdiction of the appellate court over its own judgments, like that of courts generally, persists to the end of the term at which the judgment is rendered, and then absolutely terminates, in the absence of statute, or rule having the effect of a statute, in force to the contrary, and that the appellate court in a proper case may recall its mandate, and reassume jurisdiction over its own judgments during the term at which they were entered. See Franklin Bank Note Co. v. Mackey, 158 N.Y. 683, 51 N.E. 178; 10 R. C. L. Sec. 351, page 563; 15 R. C. L. Sec. 143, page 690.
The motion to recall the mandate will therefore be granted and the cause reinstated on the docket for the purpose of giving further consideration to the judgment rendered at the present term, in order that it may be determined whether or not there is error in such judgment which should be corrected in order to prevent a miscarriage of justice.
Motion to recall mandate granted.
BUFORD, C.J., AND WHITFIELD, TERRELL, BROWN AND DAVIS, J.J., concur. *Page 699
ELLIS, J., dissents.
* Lovett v. State, 29 Fla. 384, 11 So. 176; Brown vs. State,29 Fla. 494, 11 So. 181; Merchants National Bank v. Grunthal,39 Fla. 388, 22 So. 685.