As has been stated in the very able opinion of MR. JUSTICE ELLIS, the question we are now discussing is one of power, not one of procedure. It is admitted that all courts of general jurisdiction have power to correct their own judgments during the term at which they were rendered. It is also admitted that this power of the courts to correct their own judgments during the same term not only can be, but should be exercised when a failure to exercise them will likely result in a miscarriage of justice.
It is argued that the power of this court over the pending cause ended when its mandate reversing the decree of the Circuit Court and ordering a different decree, was remitted by this Court to the Circuit Court and then lodged with the Circuit Court.
Such mandate, however, was only issued pursuant to the rules of this court which provide for the issuance of mandates in advance of the legal conclusion of its regular terms prescribed by statute. Ordinarily mandates of an appellate court will not be issued until the end of the term, because of the jurisdiction and control of the judgment, of which such mandate is merely evidence, is retained by this Court during the term.
My conception of the law therefore is that if this Court retains jurisdiction over its own judgments until the end of the term, that if there is any lack of power in this court in the matter now before the bar, the lack of power lies in the inability of this court by its own rules to foreclose its admitted jurisdiction by providing for the sending out of its mandate in advance of the end of its terms.
This Court exercises general constitutional jurisdiction as an appellate court. It is conceded that as a constitutional *Page 708 court of general appellate jurisdiction it retains control and jurisdiction, with power to change or modify, its own judgments during the same term. To now hold that it has lost jurisdiction by the issuance of its mandate is to hold that this Court by passing a rule providing for the issuance of mandates before the end of its terms delimited and narrowed its own constitutional jurisdiction over its own judgments during the same term, which would otherwise have remained but for such rule.
I do not question the power of this Court as a matter of procedure to prescribe a rule that mandates shall be issued at the end of thirty days, whether the term is ended or not, unless there is a petition for a rehearing pending. My thought in this connection, is that while such a rule may be passed as a matter of procedure, and should be observed by the Court and enforced by the court like all of its other rules of procedure, that nevertheless it is only a rule of procedure and where there is a conflict between the application of such a rule of this Court and the constitution of this State which gives this Court jurisdiction to enter judgments and to retain and exercise control over them during the term, that such rule must be understood as being in subordination to the constitutionalpower of this Court to do that which in the administration of justice, and in order to prevent a miscarriage of justice in a particular case, ought to be done.
I am unable to find anything in Brown v. State, 29 Fla. 494,11 Sou. Rep. 181, which holds to the contrary. It is true that in that case this Court held that it had lost jurisdiction of the writ of error on which a judgment had been reversed and that it could not disturb or reconsider that decision after the mandate had been issued and lodged in the court below, even though motion was made in the Supreme Court to that effect during the term in which the judgment of reversal was rendered. *Page 709
But the Brown case is easily distinguishable from the situation here. In the first place, no effort was made to have the mandate recalled from the Criminal Court of Record. The court was asked generally to reconsider and revise its judgment of reversal, while the mandate of reversal remained on file in the court below. Furthermore, it was expressly admitted by the Attorney General in that case, as we find from an inspection of the original court files in the archives of this Court, that the transcript of the record upon which the judgment of reversal was rendered was a correct transcript and therefore the judgment of reversal entered by the appellate court on such transcript was a correct judgment by the appellate court.
It was never contended in that case that there was any error or miscarriage of justice involved in what was decided by the Supreme Court. The error which was insisted upon in that case was an error on the part of the clerk of the Criminal Court of Record in failing to have the trial court's record show that the accused was present at all stages during the trial. The purpose of the Attorney General's motion was not to ask the Supreme Court to correct its own error after the mandate had been sent down following a judgment of reversal, but was to ask the Supreme Court to reverse its admittedly correct judgment on the record before it by permitting the record on appeal to be amended so as to show that the error which appeared in it did not exist.
In this connection it must be noted further that the rule followed in the Brown case is that the court below, after the mandate is filed, cannot introduce into its records facts showing that the judgment of the appellate court reversing the case was erroneous and ought not to be changed because of something that was never before the appellate court and which did not exist as a matter of record when the appellate court's decision was handed down and which *Page 710 likewise did not exist of record in the lower court when the appellate court's decision was handed down. The files in the Brown case show that counsel for Brown cited in support of this rule the case of Livingston vs. Story, 12 Peters 339.
What this Court did in the Brown case was merely to hold that when a criminal conviction for felony has been properly considered by the Supreme Court on a record which is in facta true record of the proceedings in the court below, and thejudgment has been properly reversed by the Supreme Court on such record, that the court below has no jurisdiction to amend the judgment thus annulled by the Supreme Court, so as to make a new record upon which the Supreme Court can reconsider and reverse its own judgment, after it has once exhausted its appellate jurisdiction in a proper case decided on a proper record. The Brown case wholly failed in every respect to deny the power of the Supreme Court to exercise control over its own judgments at all times during the same term at which said judgments were rendered, merely because a mandate in conformity with such a judgment had been issued and lodged in the lower court.
The Lovett case, 29 Fla. 384, 11 Sou. Rep. 176, 16 L.R.A. 313, was decided at the same term of this Court as the Brown case, and the opinion in the Lovett case was written by CHIEF JUSTICE RANEY, who also wrote the opinion in the Brown case. In the Lovett case the rule governing these matters was stated to be that where a case has been heard upon its merits in an appellate court according to its rules of practice, and the judgment of the appellate court has been correctly entered, andthe time, if any, allowed by statute or its rules for arehearing has passed, and no application for a rehearing hasbeen made, and the mandate issues and is lodged in the lower court, it may be said that the appellate court has lost its jurisdiction *Page 711 of the case, and has no power to recall or reconsider it, because under these circumstances it has fairly and duly exercised its appellate functions and exhausted its powers as to the cause. (See 29 Fla. text 401).
It was there said that this was the rule, because there must be an end of litigation; that public policy, as well as the interests of individual litigants, demand it, and that the rule just announced is indispensable to such consummation.
But, as will be noted, the statement of the rule laid down in the Lovett case contemplates that the judgment of the appellate court must have been correct when entered. It by no means follows that if the judgment of the appellate court is not correct, that the appellate court, merely to put an end to litigation, must preserve and perpetuate its own errors in the interest of public policy.
In the case of Merchants' National Bank v. Grunthal, 39 Fla. 388,22 Sou. Rep. 685, the fourth headnote reads:
"When the mandate of the appellate court has been regularly issued and sent to and filed in the court whose judgment it has reviewed, such appellate court has no further jurisdiction over the case to grant a rehearing or other relief therein."
A better and more exact statement of what was intended to be decided in that case would appear if said headnote read as follows:
"When the mandate of the appellate court has been regularly issued and sent to and filed in the court whose judgment it has reviewed, such appellate court has no further jurisdiction over the case to grant a rehearing or other relief therein, when application to recall the mandate and grant a rehearing is presented to the Supreme Court at the subsequent term to that at which the judgment of the Supreme Court was rendered."
In Merchants' National Bank v. Grunthal, supra, as shown by the published opinion in the case and as also shown by the minutes of this court which have been examined *Page 712 to verify the fact, the judgment disposing of the case was rendered at the June Term, 1896, of this Court. On January 12, 1897, after the expiration of the June Term, 1896, and on the first day of the January Term, 1897, the plaintiff in error in that case, whose writ of error had been dismissed, made his application to recall the mandate and reinstate the cause on the docket of the Supreme Court, not for the purpose of reconsidering and correcting any error or miscarriage of justice in the Supreme Court's judgment which had been rendered at the previous term, but in order that the plaintiff in error himself might correct his own record in such manner that his writ of error might be successfully prosecuted.
All that the case of Merchants' National Bank v. Grunthal decides is that the Supreme Court has no further jurisdiction over a case to recall the mandate or to grant a rehearing or other relief therein after the expiration of the term at whichthe judgment was rendered. To this rule I heartily agree because it is in harmony with the rule prevailing in all jurisdictions, but such case is not authority for the proposition that the Supreme Court has no power during the same term to recall its mandate and grant a rehearing or other relief therein merely because the mandate has been issued and filed in the Circuit Court pursuant to a rule which provides for the mandate to issue in advance of the end of the term.
This court has only recently said that while it is important to dispose of cases here speedily, it is more important that such cases should be decided justly.
This being true, it would seem that the public policy which demands that there must be an end to litigation, requires that litigation must not be ended at the expense of producing a miscarriage of justice by the refusal of this court to exercise the power, which every court in this country has always acknowledged, to the effect that every *Page 713 court of general jurisdiction retains jurisdiction over its own judgments until the end of the term, in the absence of some statute which cuts it off short of that time.
The rule announced in the Lovett case also embraces the idea that the time allowed by statute or court rule for making application for a rehearing must have passed with no application for a rehearing applied for within the time allowed to the parties thereof. This decision, of course, means no more than that where the court here prescribes a rule limiting the time for applying for a rehearing, it has the force and effect of a statute, and should be observed and adhered to by the court as such where no rehearing has been applied for within the rule just as statutes are complied with, because the parties to the litigation have a vested interest in having the rule observed, which vested interest goes to the jurisdiction of the court to proceed.
In Johnson v. McKinnon, 54 Fla. 221, 45 Sou. Rep. 23, 13 L.R.A. (N.S.) 874, 127 Am. St. Rep. 135, 14 Ann. Cas. 180, the substance of this judicial requirement was expressed by this court as follows:
"Though a court may possess jurisdiction of the cause, of the subject matter and of the parties, it is still limited in its mode of procedure and in the extent and character of its judgment."
In the case at bar the losing party promptly made his motion for a rehearing within the time and in accordance with the rules of this court. So far as the appellees are concerned, the appellees have done everything within their power to procure the rendition of a proper judgment by the Supreme Court of Florida. But assuming (not deciding as we have heretofore stated) that the Supreme Court of Florida has erroneously denied the appellees' petition for a rehearing, and by reason thereof the appellees have suffered a miscarriage of justice at the hands of this Court, is it sound for this Court to announce a rule to the effect that there is no power in this Court to correct *Page 714 its own error, and that this Court must aid in the perpetration of a miscarriage of justice against the appellees by requiring the court below to carry out this Court's erroneous judgment, merely because this Court has adopted a rule under which mandates are sent out by the clerk before the time that this Court would ordinarily lose control over its judgments during the same term?
It seems to me that the correct rule on this subject is that adopted and followed by the Court of Appeal of the State of New York. That Court has held that although all the appellate jurisdiction of a case is lost by the filing of the mandate of the appellate court in the lower court, and that the lower court thereupon is reinvested with the complete jurisdiction to proceed with the cause, nevertheless the appellate court by virtue of retaining jurisdiction over its own judgments during the same term, retains jurisdiction to recall its own mandates and, after having recalled its own mandate, to reassume jurisdiction as an appellate court in the case in order to review its former decision and correct whatever error it, as an appellate court, may have committed therein. See Cordozo on Court of Appeals, Section 133; Franklin Co. v. Mackey,158 N.Y. 683, 51 N.E. 178.
The case of Ott v. Boring, decided by the Supreme Court of Wisconsin, 111 N.E. 833, it is true, criticised the holding of the Court of Appeals of New York, as pointed out by MR. JUSTICE ELLIS. It will be noted, however, that that the Supreme Court of Wisconsin was not at all unanimous in so doing, and that when the Supreme Court of Wisconsin really came down to disposing of its own case involving the same proposition in that court, it rested its own decision upon a statute of the State of Wisconsin, which the Court expressly held cut off the jurisdiction of that Court over its own judgments prior to the end of its term. *Page 715
A short quotation from the opinion in that case is pertinent on this point:
"Generally, too, it is held, in the absence of statute, that the power of an appellate court over its judgment, like that of courts generally, persists to the end of the term at which the judgment is rendered, and then absolutely terminates, except as it may be terminated earlier by the retransmission of the cause to the trial court. * * * In Pringle v. Dunn, 39 Wis. 435, it was first definitely reasoned that the statute requiring the remission of the record within thirty days took away the previously existing inherent jurisdiction of the court over its judgments throughout the remainder of the term. * * * In the light of these decisions of our own court, we cannot avoid the conviction that the rule has been thoroughly adopted that, when the record upon an appeal has been regularly transmitted to and filed with the court from which it originally came, this court's jurisdiction over the cause and also to vacate or modify its own judgment is at an end; that the effect of the statute is to impose upon the clerk the duty, as an officer of the law, to transmit the record at any time within sixty days after the decisions of the court, subject, within that period, to such order as the court may make in protection of proper opportunity to make motions for rehearing, whether strictly such or of that nature, so that, whenever the clerk, without the disobedience of any such order or rule of court, does as in this case, transmit the record within the sixty days, it is regularly and lawfully transmitted, and the jurisdiction of this court is terminated. It should perhaps be said, for certainty, that this limitation upon the power of the court to grant rehearing or to vacate or modify its judgment has no relation to that other power, existent in all courts and at all times, to correct the mere record of the judgments which they render so as to make the record properly express the judgment." (Emphasis mine).
In Florida we have no such statute as prevails in Wisconsin. Consequently, as the Wisconsin Court itself states, the rule is that the power of this court as an appellate court *Page 716 remains over its own judgment like that of courts generally, to the end of the term at which the judgment is rendered, and then absolutely terminates.
It seems to me, therefore, that if this Court has occasioned a miscarriage of justice by erroneously denying to the appellees a rehearing which was seasonably applied for within the time limited by our court rules, that in so far as merepower or jurisdiction of this Court is concerned, that this Court does have and retain jurisdiction to recall its own mandate from the Circuit Court for the purpose of reinvesting itself with jurisdiction over the cause in order to consider appellees' petition for rehearing, when necessary to avoid a miscarriage of justice which may be imminent, it appearing that all these proceedings have transpired during the June Term, 1931, of this Court at which time the judgment of reversal was rendered and the appellees' petition for a rehearing was denied.
WHITFIELD, J., concurs.