The majority opinion writes into the statute a provision which imposes upon this court the duty of writing advisory opinions. Even the declaratory judgments act (Rem. Rev. Stat. (Sup.), § 784-1 [P.C. § 8108-21] et seq.) does not bring within its purview the supreme court of this state.
My research has not disclosed any authority at the common law in support of the expunging of the Departmental opinion and/or the dismissal of the appeal. This court has never adopted a rule, nor has our legislature enacted any statute, which authorizes dismissal of an appeal or expunging of a Departmental opinion under a state of facts such as is presented in the case at bar. The only authority supporting the majority opinion is McKenziev. Chastain, 181 Ga. 807, 184 S.E. 276, in which no opinion was written and which has never been cited with approval by any court. The syllabus recites that three cases were considered together. *Page 240 After a decision was rendered, but while the cases were still pending on motion for rehearing, the parties entered into an agreement settling all of them. "The cases having thus become moot while pending in this court, it is ordered that the former judgments be vacated, that the opinion be withdrawn, and that the writs of error be dismissed."
Hutchings v. Fanshier, 134 Wash. 704, 236 P. 119, Dishmanv. Whitney, 124 Wash. 697, 215 P. 71, and Young v. Campbell,20 Ariz. 355, 181 P. 171, are distinguishable on the facts from the case at bar. In each of those cases, a petition for rehearing was filed and by the court granted, but prior to the rehearing the parties reached a settlement and agreed that the appeal be dismissed. The holding, in effect, in each of those cases is that a motion for rehearing not only suspends but vacates and annuls the decision or opinion to which the petition for rehearing is addressed. In the case at bar, the petition for rehearing was abandoned; no rehearing had been granted.
In any event, the motion to dismiss the appeal is not timely. Nor does dismissal of the appeal afford the remedy sought by the parties, who are insistent that the opinion is unsound in law. Even if we dismissed the appeal, the judgment of the trial court would become final and constitute an adjudication of the issues involved herein binding on the respective parties. If the opinion remains in the published reports, the very thing which the parties desire done will have been refused.
The Departmental opinion affirming, as modified, an order approving the final account of the guardian, was filed April 25, 1940. Appellant's petition for rehearing was filed May 24, 1940. We ordered respondents, June 12, 1940, to answer appellant's petition for rehearing. June 17, 1940, the chief justice was advised *Page 241 by respondents' counsel that the questions "raised upon the above appeal have, since the filing of the Departmental opinion on April 25, 1940, become moot." Appellant's counsel, in letter dated June 17, 1940, addressed to the chief justice, stated that, as the issues between appellant and all of the respondents "in the above appeal, No. 27713," had become moot, appellant had no objection to granting the request of respondents that they be not required to answer appellant's petition for a rehearing, provided that the opinion filed April 25, 1940, in the cause be not published in the bound volumes; "but if not withdrawn, then our petition for rehearing should be granted or the respondents be required to answer our petition."
The chief justice advised counsel for the respective parties that the question raised by them should be presented by appropriate motion, which was done, for hearing on a regular motion docket. Appellant's motion was for withdrawal of Departmental opinion, while respondents moved that they be relieved from the necessity of answering the petition for rehearing. Respondents urged that, as appellant voluntarily entered into the settlement agreement with respondents in June, 1940, which was subsequent to the filing of the Departmental opinion and prior to the direction of this court that the petition for rehearing be answered, under which every question presented to this court on appeal had become moot, appellant was estopped "to ask that the Departmental opinion be withdrawn . . . that the entry into said agreement implied an acquiescence by appellant to the Departmental opinion." In other words, thepetition for rehearing, filed by appellant, became moot.
The Departmental opinion could not become final until thirty days after the opinion was filed, during *Page 242 which period a petition for rehearing could be filed, the filing of which
". . . shall have the effect of suspending such decision until the same shall have been disposed of. If no such petition be filed the decision of a Department shall become final thirty days from the date of its filing,"
unless the court on its own motion during such thirty-day period enters an order for an En Banc hearing of the cause. If of the view that the Departmental decision or opinion should become effective prior to thirty days after its filing, it shall go into effect, and judgment issue thereon, any time after its filing and prior to such thirty-day period, if the chief justice or a majority of the Department rendering any decision and any two associate judges who took no part in rendering such decision are of the view that the effective date of the opinion or decision should be any time prior to thirty days subsequent to filing of the decision. Whenever a decision or opinion shall become final, "a judgment shall issue thereon." Rem. Rev. Stat., § 10.
The majority mistakenly cite as supporting authority 9 Bancroft's Code Practice and Remedies 9565, § 7253. The opinions of the Oregon supreme court cited in the notes to that text disclose that the rules of the supreme court of Oregon in effect at the time of the writing of those opinions are very similar to our statute (Rem. Rev. Stat., § 10). The supreme court rules of Oregon provide:
"All applications for rehearing shall be by petition in writing or printing, . . . and shall be filed within twenty days next after the filing of the opinion. . . .
"The filing of a petition for a rehearing shall suspend further proceedings under the decision until the petition is disposed of, unless the court . . . shall otherwise order." 91 P. xi. *Page 243
While the decision or opinion of the supreme court of Oregon is final at the time it is filed, a period of twenty days is allowed the parties (the period in this state is thirty days) in which to file a petition for a rehearing. The petition, under the rules of the Oregon supreme court, suspends further proceedings under the opinion or decision until disposition of the petition.
Under our statute (Rem. Rev. Stat., § 10), quoted above, our opinion or decision does not become final until thirty days after it is filed during which period a petition for rehearing may be filed. The filing of that petition has the effect of suspending the decision or opinion until this court has disposed of the petition for rehearing. If no petition is filed, the decision or opinion of a Department of this court becomes final thirty days from the date of its filing. Upon the disposition of the petition for rehearing, or if no petition for rehearing is filed within thirty days, the decision or opinion becomes final and "a judgment shall issue thereon." That is, the clerk of this court, as a matter of course, sends down a remittitur or transmits the mandate of this court to the clerk of the court affected.
Note the following language of Rule 24 of the supreme court of Oregon respecting the issuance of a mandate upon the disposition of a petition for rehearing, or if within the period with which a petition may be but has not been filed:
"Upon the disposition of a petition for rehearing or if within twenty days after final judgment or decree no petition shall have been filed, the clerk shall, as a matter of course, unless he is directed by the court otherwise, issue and forward a mandate to the clerk below." 91 P. xi.
In other words, while the opinion is final, the remittitur or mandate is stayed until the expiration of the time in which a petition for rehearing may be filed *Page 244 or until the disposition of the petition for rehearing; or, as stated above, unless the court shall otherwise provide. Whether the opinion is called a decision or a judgment and is "final," means no more than our statute. On the one hand, the opinion of the court is final when it is filed, but a period of twenty days is permitted in which to file a petition for rehearing; the filing of the petition for rehearing suspends the opinion, the decision, or the judgment until disposition of the petition. The opinion, decision, or judgment again becomes final, and the clerk, as a matter of course, sends down the remittitur or the mandate of the supreme court to the trial court affected.
Respecting the question as to the date when the judgment of the appellate court becomes final under such a rule, the supreme court of Oklahoma held, in St. Louis S.F.R. Co. v. Bly,62 Okla. 93, 162 P. 202, that a judgment of that court affirming the judgment of the trial court when no petition for rehearing is granted becomes a finality on the day the judgment or opinion of the supreme court is filed. 2 R.C.L. 173 is cited in support of the position that the opinion did not become final on the day application for rehearing was denied but became final on the day the opinion, decision, or judgment was filed. That is, the petition for rehearing suspends the decision until disposition of the petition; and "when the petition for rehearing is denied the judgment became final on the day of its rendition by this court."
The rules of the supreme courts of Wyoming (104 P. xiv), Colorado (211 P. xi), and Utah (196 P. xiii), are to the effect that the filing of a petition for rehearing, within the prescribed time, suspends proceedings under the decision or opinion until disposition of the petition unless the court otherwise orders. In the notes under 9 Bancroft's Code Practice and *Page 245 Remedies, 9566, § 7253 (cited in majority opinion), reading as follows, two Oregon cases are cited:
"It has been held that the opinion of the court is final when it is handed down, and that a motion for rehearing, if filed, only suspends the judgment from the date of filing."
The words "decision," "opinion," and "judgment" are used synonymously by the supreme court of Oregon, the decisions of which are cited in support of the text upon which the majority rely. The Oregon supreme court does not differentiate between a decision and a judgment. Zeuske v. Zeuske, 55 Ore. 65,103 P. 648, 105 P. 249, Ann. Cas. 1912A, 557, is one of the two cases cited in support of the text just quoted. That case cites the rules of the supreme court of Oregon respecting the finality of its judgment on the date the opinion is filed, and that a motion for a rehearing suspends the judgment or opinion from the date of its filing; and that there must be a lapse of twenty days in every case between the rendition of the judgment and the issuance of the mandate unless the court otherwise directs.
This, in principle, is the same as our statute (Rem. Rev. Stat., § 10) to the effect that thirty days must elapse in every case between the date of the filing of the opinion and the issuance of the mandate unless the court otherwise directs. In the supreme court of Oregon, the remittitur goes down, as a matter of course, twenty days after the opinion is filed or after disposition of a petition for rehearing if filed within twenty days after the opinion is filed, which opinion is the judgment and is final. In Oregon, the opinion is the judgment. In this state, our opinion is the judgment or decision of this court thirty days after it is filed unless within that period a petition for rehearing is filed. Upon the disposition of that petition, our opinion *Page 246 is final. As a matter of course, the clerk of this court issues and forwards a mandate or remittitur to the trial court exactly the same as is done in Oregon, the only difference being the number of days which must expire before the mandate issues.
The second case cited in the notes to the text upon which the majority rely is Hammer v. Downing, 39 Ore. 504, 64 P. 651, 65 P. 17, 990, 67 P. 30. In that case, it was held that, when an opinion is handed down, the judgment is, to all intents and purposes, final, notwithstanding the rules of the Oregon supreme court which allow the defeated party twenty days in which to file a petition for a rehearing; which rules, it should be remembered, provide that filing of a petition for rehearing within the period of twenty days suspends proceedings under such opinion, decision, or judgment.
The holding in Hammer v. Downing, supra, that petition for rehearing must be filed the day the opinion is filed or the judgment is pronounced, is not in harmony with the rules of the Oregon supreme court or the later opinion of Zeuske v. Zeuske,supra. Even if the opinion, decision, or judgment is final when filed or rendered, the rules of the Oregon supreme court give to the defeated party twenty days within which to file a petition for a rehearing. The filing of such petition suspends further proceedings under the decision. The mandate or remittitur is not transmitted to the clerk of the trial court until disposition of the petition for rehearing or until after the expiration of the period of twenty days after the filing of the opinion, decision, or final judgment of the Oregon supreme court.
The rules of other courts, as stated in 9 Bancroft's Code Practice and Remedies 9566, provide plainly that the remittitur shall be stayed until the expiration of the time of the filing of the petition or until the petition *Page 247 therefor shall have been denied, unless the court otherwise provides. The effect of the petition for rehearing is to prevent the judgment from becoming final until disposition of the petition and (as held in North Laramie Land Co. v. Hoffman,27 Wyo. 271, 195 P. 988) to leave the court in control of the cause within the limits of its appellate jurisdiction. In other words the opinion, decision, or judgment being final, it was essential, under Hammer v. Downing, supra, to the retention of jurisdiction by the appellate court that the petition for rehearing be filed on the same date that the opinion was filed, which is not in harmony with the twenty-day rule or Zeuske v.Zeuske, supra.
The filing of the petition for rehearing, under the statute (Rem. Rev. Stat., § 10), has "the effect of suspending such decision until the same shall have been disposed of." The meaning of this is so patent as to obviate the necessity of lexicographic or legal definition. The filing of a petition for rehearing postpones, until disposition of that petition, the effect of that opinion, which becomes a final decision or judgment within thirty days after filing, or final following disposition of the petition. The petition may aptly be designated a suspensive motion, the purpose of which is to suspend finality or postpone the date of finality of the opinion or decision.
The earlier case of Houston v. Williams, 13 Cal. 24, 73 Am. Dec. 565, in the notes to 7 Cal. Jur. 647, quoted in the majority opinion, in discussing the difference between decisions and opinions, is an interesting article on the subject to which the court addressed itself; however, it is not in point, for the reason that, whether the written expression of this court is an opinion, a decision, or a judgment, its operation is suspended by the filing of the suspensive petition for rehearing. *Page 248 There is no final judgment or decision until the going down of the mandate or remittitur to the trial court.
If the Oregon supreme court rules mean what they say, no mandate or remittitur issues until the decision becomes final. There is no finality, under the rules of the Oregon supreme court, until the expiration of twenty days from the filing of thefinal judgment or until disposition of the petition for rehearing. If the opinion is a final judgment, the appellate court would be required to recall the mandate or remittitur before it could entertain the suspensive motion, the petition for rehearing.
The jurisdiction of an appellate court over a cause is lost upon the issuance of the mandate, and the authorities are to the effect that it is certainly lost after the remittitur has been filed in the trial court and action taken thereon. 4 C.J. 1244. It is for this reason that the period of twenty days in Oregon or thirty days in this state must elapse before the remittitur goes down, in order that the appellate court retain jurisdiction of the cause. After the cause is decided on appeal and the mandate has issued thereon, the appellate court would be without jurisdiction to grant a rehearing until it recalled the mandate for the purpose of reinvesting itself with jurisdiction. The effect of the application for a rehearing is to suspend, as heretofore stated, the judgment, decision, or opinion.
"A petition for a rehearing does not vacate or annul the judgment. It merely suspends it from the date of the filing thereof. The denial of a petition or motion for rehearing leaves the judgment in full force as of the time of its rendition. . . .
"The granting of a rehearing has the effect of withdrawing the opinion previously filed, and it then is of no force or authority, unless subsequently adopted by the court." 3 Am. Jur. 352, §§ 809, 811.
The rule that, if parties pending an appeal settle *Page 249 their differences, the court will not proceed to determine the case but will dismiss the appeal, is not applicable in the case at bar. Neither is this a case where, after rehearing has been ordered, the parties arrive at a settlement rendering the questions at issue, raised on the motion for rehearing, moot questions.
There might be some merit in the position of the majority underHutchings v. Fanshier, supra, Dishman v. Whitney, supra, andYoung v. Campbell, supra, if we had ordered a rehearing of the case and the parties to the litigation thereafter reached a settlement of which we were informed. If, as a consequence, the questions at issue raised on the petition for rehearing had become moot questions, the position of the majority would be tenable. The position of the majority, however, is that the suspensive motion, the petition for rehearing (which suspended our decision or opinion), after which the parties reached a settlement of which we have been informed, resulted in making the questions at issue moot questions. Not so. All that became moot by this settlement after the petition for rehearing was filed, which petition did not vacate or annul our opinion, was the petition for rehearing. That is, there was an abandonment of the petition for rehearing; and, as urged by counsel for respondents, the settlement agreement disposed of all further controversy upon this appeal, and by the entry into the agreement there was an implicit acquiescence by appellant in the Departmental opinion or decision.
The only cases cited in support of the text (4 C.J.S. 1953) on which the majority rely, that after a decision has been rendered by the appellate court and the case is still pending on motion for rehearing, or after a rehearing has been ordered, the appeal will be dismissed when there is a showing that there has been a valid settlement or adjustment by the parties *Page 250 of all their differences respecting the subject matter of the controversy, are McKenzie v. Chastain, 181 Ga. 807,184 S.E. 276, and Young v. Campbell, 20 Ariz. 355, 181 P. 171, which I have already discussed.
In State v. Banks, 94 Wash. 237, 161 P. 1189, pending the appeal from conviction of crime, the appellant died. His death was suggested at the oral argument. We refused to pass upon the questions presented upon the briefs and dismissed the appeal. In answer to the suggestion by counsel that we pass upon questions presented upon the briefs, we stated that the action had abated by the death of appellant and must be dismissed. We referred toState v. Furth, 82 Wash. 665, 144 P. 907, in which we stated that the death of the defendant in a criminal case pending appeal, in the absence of a statute to the contrary, permanently abates the action; that
"The underlying principle is that the object of all criminal punishment is to punish the one who committed the crime or offense, and not to punish those upon whom his estate is cast, by operation of law or otherwise."
We decided that case on the merits because we were invited by counsel to do so, and because the case was pending in the trial court against other defendants.
The position of the majority that the appeal should be dismissed for the reason that all controversies presented by the appeal and between the parties thereto have ceased, hence nothing remains upon which a judgment of this court can operate, is not sound, nor is that position supported by any authority other thanMcKenzie v. Chastain, 181 Ga. 807, 184 S.E. 276, in which no opinion was written, hence we are unaware of reason on which that decision is based. All that we should do is to deny the petition for rehearing or *Page 251 enter an order to the effect that same has been abandoned.
BLAKE, C.J., and SIMPSON, J., concur with MILLARD, J.