This case is now presented upon a motion to recall the mandate to the end that a petition for rehearing may be submitted in behalf of the Appellees. The opinion and decision of this Court was filed July 21, 1931, in which a decree of the Circuit Court in favor of the appellees, defendants below, was reversed with directions to enter a decree for the complainant. A petition for rehearing in behalf of the appellees was filed August 15th following and denied on September 14th and the mandate from this Court was issued two days later. The motion was filed November 13th to recall the mandate. The judgment of this Court and the successive steps above mentioned all occurred during the present term.
The appellant resists the motion to recall the mandate upon the ground that this Court has lost jurisdiction of the cause by forwarding its mandate to the court whose decree it reviewed and therefore it has no authority to grant a second petition for rehearing filed subsequently to the lodgment of the mandate of this court in the lower court. The second petition for rehearing was filed in this Court upon the same day that the motion to recall the mandate was filed which was four months and twenty-two days after the judgment of this Court was filed and a month and twenty-seven days after the mandate was issued by the court but all during the present term.
There was no fraud perpetrated upon this Court nor was there any mistake or inadvertence upon its part in causing the mandate advising the trial court of the judgment of this Court to be issued and sent to the trial court unless indeed the court erred in denying the first petition for a rehearing. For the purpose of this discussion, therefore, it may be admitted that there was such error so that the question presented may be stated as follows: May a court of review at any time during the term at which a *Page 700 judgment has been rendered and a mandate upon its judgment has been duly lodged in the court whose judgment was reviewed recall the mandate where there has been no fraud, accident or mistake in its issuing to the end that the reviewing court may consider again alleged errors pointed out in its judgment or reversal or affirmance?
The terms of this Court are two in each year commencing respectively on the second Tuesday in January and June. Sec. 4690 C. G. L. It is within the reasonable limit of probabilities therefore that a judgment of reversal, such as the one entered in this case, or of affirmance, to be enforced by the trial court and the subject matter of the litigation disposed of and the rights of third persons thereto become vested within the period of one term of this Court. May the power of the Court to recall its mandate under the circumstances above mentioned be affected by such a condition so that it could not be exercised? If so does not the possibility of the happening of such an event afford the reason why the reviewing court has no power to recall its mandate in the absence of fraud, accident or mistake in its issuing which would per se invalidate it? In the event of a recall of the mandate to correct errors in its issuing the change or correction of the mandate should be made at the term in which it was issued. 13 Ency. Pl. Prac. 865.
In the case of Merchants Nat. Bank of Jacksonville v. Grunthal, 39 Fla. 388, 22 South. Rep. 685, writs of error were dismissed because the plaintiff in error had failed to exhibit by the record any matters assigned in error in such manner as the court was authorized to recognize or consider them. The plaintiff in error contested the motion to dismiss but made no effort under the rule to suggest a diminution of the record or to supply the "palpable and fatal defects and omissions therein." *Page 701
Subsequently to the dismissal of the two causes and within the same term of the court the plaintiff filed motions to reinstate the cases upon the docket and for leave to file a motion suggesting diminutions in the records and for a certiorari to bring up the corrected record. Those motions were denied at the same term. The reason given by the court was that certiorari to amend defects in records will not be awarded after the dismissal of a cause. Thereupon after denial of the applications for rehearing and reinstatement of the causes they were remitted to the court below by mandates.
During the same term of the court, after a denial of the former application for a rehearing and reinstatement of the causes, the plaintiff in error made its second application for recall of the mandates and for reinstatement of the causes. There were eleven grounds given why the court should allow the application, the first being because the court had power to do it. The remaining grounds rested upon alleged denial of plaintiff in error's rights under the constitution, laws and court rules, by the court's action in dismissing the causes.
The Supreme Court at the following term denied the application specifically holding that "because the mandate of this court having been regularly issued and sent to and filed in the court below in said causes, this court has no further jurisdiction to grant a rehearing or other relief therein." The application was denied "with reluctance," said the court. There were two other reasons given, however, one of which went to the court's practice under a rule and the other to the propriety of granting an application for rehearing by the same party on the same grounds as a former application that had been considered and denied. No point was made of the fact that the final action of the court was taken at the term following that in which the mandate went down but was placed squarely *Page 702 upon the proposition that the mandates having been sent down the Supreme Court had no power to recall them although the application to recall them was made during the term in which the decision was rendered. If the court had entertained the view that it had power over its mandate regularly issued without error or mistake to recall it at any time during the term at which the judgment was rendered, it would seem that as the application for its recall was made within the term the order would have been made to take effect as of the date the application was submitted, as the court denied it with reluctance.
In Brown v. State, 29 Fla. 494, 11 South. Rep. 181, judgment was reversed because the record proper did not show that the jury were sworn. After the mandate was issued and filed in the Criminal Court the Attorney General moved to vacate the judgment of reversal and suggested a diminution of the record to correct the error appearing in the record. The court denied the motion holding that it had lost jurisdiction of the writ of error and cannot disturb or reconsider that decision. The court said nothing else was before it. In that case it was pointed out that there was no error of law in the decision but the exercise of jurisdiction was regular and not the result of mistake, surprise of fraud.
In the case of Lovett v. State, 29 Fla. 384,11 South. Rep. 176, where the court entered judgment reversing the judgment of the circuit court, issued its mandate and the same was filed in the office of the clerk of the circuit court, the cause was recalled and restored to the docket for further proceedings on motion of the Attorney General based upon the ground that the transcript of the record on which the court acted was not a correct and true transcript of the record. Mr. Chief Justice Raney wrote the opinion for the court in each case. In the latter case the decision rested upon the theory that the false record was brought *Page 703 to the court by the convict, the court's judgment was improvidently entered because of the imposition upon the court which amounted to a fraud upon its jurisdiction. It was held to be not the judgment of the court upon the true cause of the plaintiff in error.
The Lovett case, supra, is authority only for the proposition that when the judgment of the reviewing court has been obtained by a kind of fraud on the court, or where it is entered not upon the true case of the party applicant, the mandate will be recalled on the theory that the judgment is improvident or result of error committed not by the court but by others charged with the duty of presenting a correct transcript of the record.
In the case of Nickels v. State, 86 Fla. 208,98 South. Rep. 502, writ of error was taken to an order of the Circuit Court denying a writ of error coram nobis which order was affirmed and the mandate sent down. Afterwards, but during the same term, the court recalled the mandate in order that the cause be reinstated upon the docket and a rehearing be granted upon the question presented. It was said by this court in Washington v. State, 92 Fla. 740, 110 South. Rep. 259, that the action in the Nickels case, supra, was taken under the "general power vested in courts to control orders and judgments rendered during the term at which such control is exercised."
The general language used in the Washington case is not in strict harmony with that used in Merchants Nat. Bank of Jacksonville v. Grunthal, supra; nor in line with Brown v. State, supra. In the Lovett case, supra, the element of fraud entered so as to render the judgment improvident, the result of error committed by one benefited by the judgment of the Supreme Court.
In the Lovett case, supra, Mr. Chief Justice Raney, speaking for the Court, used the following language:
"Where a case has been heard upon its merits in an *Page 704 appellate court according to its rules of practice, and the judgment of the court has been correctly entered, and, the time, if any, allowed by statute or its rules for a rehearing having passed, and, no application for a rehearing having been made, the remittitur issues and is lodged in the lower court, it may well be said that the appellate court has lost its jurisdiction of the cause, and has not power to recall or reconsider it. Under these circumstances it has fairly and duly exercised its appellate functions and exhausted its powers as to the cause. There must be an end of litigation; public policy as well as the interests of individual litigants, demands it, and the rule just announced is indispensable to such a consummation."
In the Brown case, supra, the application for recall of the mandate was made during the term of the Supreme Court at which the judgment in that case (See 29 Fla. 543) was rendered. Mr. Chief Justice Raney, speaking for the court in that case, said:
"all we decide now is that we have lost jurisdiction of the writ of error, in which our judgment was rendered, and cannot disturb or reconsider that decision. Nothing else is before us." (Italics mine).
In neither the Nickels case, supra, nor the Washington case,supra, was the question of recalling a mandate involved. In each the question was on the matter of granting a permit to file in the court below, whose judgment had been affirmed, an application for a writ of error coram nobis. There is no limitation in point of time upon the trial court to issue a writ of error coram nobis but when the judgment of the trial court has been affirmed by the reviewing court the judgment is that of the latter court and must be executed according to its decision, so that permission from the reviewing court is essential to permit the trial court to grant a writ of error coram nobis. Neither is it of any importance that the reviewing court denied one such application. It has the power without reference to its judgment on the first application to grant a second *Page 705 at any time when it is made apparent that the judgment entered could not have been entered if certain conditions had been made known to the court.
The question in this case, therefore, is as stated in this opinion in the first part of it. The case was brought here in due course, it was decided by this Court and the judgment entered, a rehearing denied and the mandate sent down. There is no error in the transcript of record, no fraud, actual or constructive, perpetrated on the court and no clerical misprision in issuing the mandate. But it is assumed that this Court erred in reversing the Chancellor and ordering a decree for the complainant to be entered because the evidence as disclosed by the record amply supported the Chancellor's decree.
This Court will, as any reviewing court would, avail itself of any power at its command to correct any error in its decisions whether on the merits or on any matter of procedural law if the right of the complaining party were affected, but now it is a question of power. May this Court recall its mandate in the circumstances stated to review its judgment even though that judgment may rest upon error in overlooking portions of the record which if considered would reveal its error?
The general rule is that an appellate court cannot recall its mandate after the filing thereof in the court below except for the correction of an irregularity, error or inadvertence in granting it. See 13 Ency. Pl. and Prac. 865; Blanc v. Bowman,22 Cal. 24; People v. Sprague, 57 Cal. 147; Rud v. Brd. of Com'rs of Pope County, 66 Minn. 358, 68 N.W. Rep. 1062, 69 N.W. Rep. 886; Ah Lep v. Gong Choy, 13 Oregon 429, 11 Pac. Rep. 72; Underhill v. Town of Jericho, 66 Vt. 183, 28 A. 879; Killian v. Ebbinghaus, 111 U.S. 798, 28 L.Ed. 592, 4 Sup. Ct. Rep. 698; Thomas v. Thomas, 27 Okla. 784, 109 Pac. Rep. 825,113 Pac. Rep. 1058, 35 L.R.A. (N.S.) 124. *Page 706
The rule above quoted rests largely upon the doctrine that when the reviewing court regularly, without inadvertence or fraud proceeds with the consideration of a case, determines it and retransmits it to the court from which it came, loses jurisdiction and the jurisdiction of the trial court which was suspended during the appeal becomes re-established, and both courts cannot have jurisdiction over the cause. To require courts to consider and reconsider cases at the will of litigants would deprive the courts of that stability which is necessary in the administration of justice. See Ott v. Boring,131 Wis. 472, 110 N.W. Rep. 824, 111 N.W. Rep. 833, 11 A. E. Ann. Cas. 857.
The State of New York seems to hold a different principle and maintains that the reviewing court may determine whether it will resume jurisdiction for any purpose and where it has done so it will request the court below to return the remittitur but before it can proceed further it must be repossessed of the remittitur. That State however seems to be alone in maintaining that doctrine which was criticised in Ott v. Boring,supra, as opposed to authority.
The New York doctrine seems to rest not on the power of the court to recall its mandate but upon considerations of expediency that urge the correction of errors that may have been committed by the appellate court in hastily disposing of its business. "This court has no appellate jurisdiction over its own judgments; it cannot review or modify them after the case has once passed, by the issue of the remittitur from its control. The court cannot recall the case and reverse its decision after the remittitur is issued" unless, as pointed out, inadvertence or mistake has been made in issuing it or fraud has occurred to procure the judgment. Inadvertence or haste in deciding the *Page 707 case affords no ground for the exercise of a power that does not exist.
The motion to recall the mandate should be denied.