dissenting. The case shown by the record, as I understand it, presents legally no question for the consideration of this court: because no exception was taken at the trial in respect to the testimony, or any opinion of the court receiving or excluding it, nor was the court called upon by either party to express any opinion as to the law arising thereupon in any point of view whatever, nor was there any motion made for a new trial. How then does the evidence become a part of the record in any manner authorizing this court to consider it for the purpose of revising the judgment based upon it? The court, according to my understanding of its opinion, regards it as a case agreed between the parties, considering the testimony embodied in the bill of exceptions as a statement of facts agreed upon by the parties, at or before the trial in the circuit court, and upon which alone the judgment of the court, as to the legal liability of the Bank to pay the demand of the plaintiff was required; but such conclusion is not, in my opinion, warranted by the record, because it not only fails to show any such agreement as to the facts, but shows affirmatively that no such agreement existed, and that the facts were established by testimony adduced in the ordinary mode, that is by the testimony of witnesses examined in court at the trial; and that the court upon such testimony adjudicated the case, and determined the issue joined between the parties. The facts, therefore, were before the court sitting, as the record states, as or in the place of a jury, precisely as they would have been before the jury, if one had been required. I cannot, therefore, consider it as an agreed case, nor can any be so regarded, according to my understanding of the law, unless the parties at or previous to the trial, agree upon all the facts upon which they demand the judgment of the court, and state them upon the record; in which case there is nothing for a jury to determine, the whole matter to be decided being simply a question or matter of law, and then the case'bears a striking analogy to the case of a demurrer to evidence, when the facts are admitted and their legal operation only is to be determined. But such, according to my understanding, was not the case here, because the court was bound not only to consider the law arising upon the testimony, but also to consider and determine upon the competency, the relevancy, and the weight of the testimony, as well as the credibility of the witnesses, and therefore its judgment as to the facts may have been influenced by considerations or circumstances, which cannot be made to appear to a revising court: such, for instance, as the credibility of a witness or witnesses, which might depend upon an almost infinite variety of circumstances; and therefore, the law has wisely left the determination of controverted facts to the tribunal where the witnesses appear and are examined, and will not sufier the finding or decision thereupon to be disturbed, unless the wrong done thereby is so manifest as to warrant the conclusion that it was induced by some improper motive or palpable misapprehension: and then it can, in my opinion, be set aside upon a motion for a new trial only; which, in this instance, was never made. Now can it be pretended that there was no controverted fact in this case to be determined by the court sitting as a jury? It seems to me that it cannot. Was it admitted that the plaintiffs took the notes of Williamson as a full payment, satisfaction, discharge or release of their demand against the Bank? Certainly not. Yet this was the most important question involved in the cause; and it was certainly a question of fact, which not being admitted, the Bank was bound to prove in evidence of her liability, which would be fixed by competent testimony establishing the agency of Williamson to make the contract for the Bank; the fact that he did make it in that character with the plaintiffs; that they performed the work; none of which was admitted, but all made to depend upon the testimony adduced on the trial; and the finding of the issues by the court first ascertained and determined these facts, and must have determined the fact also, that the plaintiffs did not receive the notes of Williamson in satisfaction or discharge of their demand against the Bank. And then, but not until then, the legal question as to the liability of the Bank to pay the demand of the plaintiffs arose, and if these facts had been found in the form of a special verdict, instead of being found generally as they have been in this case, there can be no doubt that the law thereupon would charge the Bank, and I cannot perceive how she can be in any better situation where the same facts are necessarily found by a general verdict, or, as in this case, by a general determination of the issue in favor of the plaintiffs. If the defendant below desired or designed to submit the questions of law alone to the court, she should have demurred to the evidence, or, when the testimony was closed on the part of the plaintiffs, have moved the court that the law thereupon was in favor of the defendant, or, in other words, to find the issue for the defendant, and in either way the legal sufficiency of the testimony to establish the right of the plaintiffs and the liability of the defendant, distinct from all questions of fact, could have been presented and submitted to this court. But I am not aware of any other legal mode by which it could be done in the attitude in which this case was presented in and before the circuit cout; and therefore, as neither mode was adopted, the legal question as to the liability of the Bank, upon the testimony adduced at the time, is not, in my opinion, presented by the record in such manner as to authorize this court to ad. judicate it; and therefore, inasmuch as there was no exception to the admission or exclusion of testimony on the trial; no agreement of record as to the facts, either at or before the trial; no demurrer to the evidence, or motion as to the sufficiency thereof to maintain and support the issue on the part of the plaintiffs; and no motion for a new trial, it appears to me clearly, that there is no error in the judgment and proceedings of the circuit court, as shown by the record, for which this court is warranted by law to reverse and set them aside. Besides, I know of no rule, of practice, or principle oif law, authorizing .an exception to be taken or made in the form of a bill of exceptions to the verdict of the jury, or finding of the court upon issues submitted to it by consent of parties, nor to the final judgment of the court pronounced in the cause; and I have not been able to find in any book an adjudicated case, or a single precedent where such practice has ever been admitted or allowed; nor has any rule of practice or principle of law authorizing such exception, been shown by counsel or referred to by the court. I therefore regard the practice, as adopted in this case, and sanctioned by the opinion of a majority of the judges of this court, as not only new and unprecedented, but as wholly unauthorized by law; and, therefore, I am of the opinion that the judgment of the circuit court in this case given, ought to be affirmed with costs.
At the same term at which that opinion was delivered, and after Lacy, J. had left the bench for the term, the counsel for the defendants in error moved the court “for a re-hearing or re-argument, for reasons to be hereafter filed.”
On the first day of January, 1843, they filed a petition fora rehearing, DicicinsoN, J., having in the mean time ceased to be judge, by expiration of his term of service, and Paschal, J., being on the bench in his stead.
Pike & Baldwin, for plaintiffs in error, insisted that the court had no. power to open the case, and set aside its judgment, especially after a. change of judges; and cited, as in point, Hudson et al. vs. Guestier, 4 Cranch 293. Martin vs. Hunter, Lessee, 1 Wheat. 355. People vs. Mary or and Ald. of N. York, 25 Wend. 254.
The case was re-opened at January term, 1843, by Paschal, J. who said: The opinion of this court was delivered in this case by the majority of the court, and a dissentient opinion by the Chief Justice, twelve months ago. The defendants in error at the same time interposed a motion and petition for reconsideration. Under the practice of the court that motion has been taken under advisement, until the present term. The organization of the court having since that time undergone a change, and my associates disagreeing, it devolved to me to determine whether or not the court would hear a re-argument, and again deliver its opinion either affirming or disaffirming the previous decision. "
The practice of considering a case on motion, after an opinion has •been delivered, judgment in accordance therewith rendered, and the erm expired, I have ever regarded, to say the least of it, of doubtful utility. Indeed when first elevated to the bench, I was disposed to regard the question as one of power and not within the discretion of the court, after the expiration of the term at which, an opinion may have been delivered and judgment signed. I was disposed to think that when a decision has been made and judgment rendered, and the term closed, that the party prevailing had a right to the benefit of the record, in order to take further steps in the court below, and that neither the court nor the parties had a right to control the record for the purpose of reversing that judgment or re-hearing the cause. Such has been, in effect, decided by this court in regard to the circuit courts. See Walker et al. vs. Jefferson, ante.
In New York, motions for reconsideration in their appellate tribunals are regarded with jealousy, and it is said by their chancellor that no such motion has been made in the King’s bench of England, for two hundred years.
But my brother judges have not been disposed to regard this as a question of power, but merely one of practice, and that, although such power should only be exercised in doubtful cases, or where the court .may have erred, yet that the court may withhold the record from the court below, by taking the case under advisement upon proper petition, still retaining the.power to re-hear and re-adjudicate the cause. And accordingly at the late term of this court a case was reconsidered, the previous jndgment reversed and a different one rendered. Pirani vs. Barden, ante. Having acquiesced in that opinion, and not wishing to reverse any well established practice of this court, I feel constrained to yield my own notions of the law and practice to the superior judgment and experience of my older associates.
In the present aspect of this case, no less important in principle than it is of magnitude to the parties, 1 have no opportunity of expressing my opinion, upon any of the points involved in the case, except by ordering a re-hearing. For, if I understand the practice of the court, should my opinion be against the petitioners, it would be out of place to give my reasons on overruling their motion, and if for them, it would be equally improper, because the prevailing party has had no opportunity to answer the argument of the petitioners.
Imust here be permitted to say, that I regard the practice as lati-tudinous, and tending to useless delay; and that taking such motions under advisement until a succeeding term, is an exercise of doubtful power. And if such a practice is to be continued, it certainly ought to be circumscribed within narrow limits.
Desirous, therefore, of fully considering the whole merits of the ease, I shall decide to reconsider the cause in order that counsel may have an opportunity of furnishing all their authorities to-the court. Let the previous judgment therefore be set aside, and the case set for re-hearing.
And the case thus again standing for argument, Pike & Baldwin for plaintiff in error, cited, as to the question of practice, Graham's Prac. 331. 8 Cowen 682, 694. Parsons vs. Armor, 3 Peters 413. United States vs. Eliason, 16 Peters 291.
And on the main question, Andrews vs, Bobinson, 3 Camp. 199. Note to Borisfield vs. Cresswell, 2 Camp. 546. Bridges vs. Berry, 3 Taunt. 130, Southwick vs. Sax, 9 Wend. 122. Raymond vs. Merchant, 3 Cowen 150. Holmes vs. DeCamp. 1 J. R. 36.
Ashley & Watkins, contra, cited; To the first point, Lyon vs. Evans, 1 Ark. 359. Elmore vs. Grymes et al, 1 Peters 472. Lenox vs. Pike, 2 Ark. 14. Vernon vs. Young, Litt. Sel. Cas. 353. Logan vs. Dorriphan, 2 J. J. Marsh. 253. 7 Mon. 454. Hanly et al. vs. Porter, 3 Ark. 18. Hanna vs. Harter, 2 id. 392. Trowbridge et al. vs. Sanger, 4 id. 179. Robins’ heirs vs. Danley, 3 id. 144.
And as to the second point, Cox & Dick vs. U. States, 6 Peters 172. Descadillus vs. Harris, 8 Greenl. 298. Reed vs. White, 1 Esp. 122. Hyatt vs. Marquis of Hertford, 3 Esp. 131, Schemerhorn vs. Jones, 7 J. R. 311. Johnson vs. Weed, 9 J. R. 310. Cromwell vs. Gould, 4 Pick. 446. Barday vs. Gooch, 2 Esp. 571. Witherby vs. Mann, 11 J. R. 518. Douglas vs. Moody, 9 Mass. 553. Cummins vs. Hackley, 8 J. R. 202. Whitcomb vs. Williams, 4 Pick. 231. 2 Greenl. 298. 6 Mass. 143. 7 id. 36. 11 id. 359. 10 id. 47. 4 id. 93. 4 Pick. 228. 8 id. 522. 10 id. 525. 12 id. 269. Mulden vs. Whitcomb, 1 Cowen 304. Hughes vs. Wheeler, 8 Cowen 77. Olcott vs. Rathbone, 5 Wend. 490. Hawley vs. Foote, 19 Wend. 516. Frisbie et al. vs. Sarned et al. 21 Wend. 450. Cole vs. Sackett, 1 Hill 515. Rathbone et al. vs. Tucker et al. 15 Wend. 498.
And, at July term, 1844, Paschal J. having resigned, and being succeeded by Sebastian, J., the final opinion of a majority of the court was delivered by Sebastian J. A question of importance as to the practice of the court presents itself at the very threshold of the examination — a question as to the power and expediency of opening and reversing its judgments rendered at a previous term, after they have been deliberately settled and recorded, according to the rules and practice of the court. Upon reason, principle, and the necessity of the case, it seems clear that no such power or right exists.- This conclusion is drawn from the familiar principle that the judgments of every court of competent jurisdiction are final and conclusive, unless reviewed and reversed by some court of appellate power. That such judgments should be final and irrevocable arises from the full faith and credit which the law accords to them, and from the necessity that litigation should have an end, and men’s rights find quiet and security under the inviolability of judicial sanction. ■ The law will not, therefore, permit a court to review and reverse its own decisions, after the matter has gone beyond its control. This is wisely left to the superior tribunals. If a court can revise and correct or reverse its own judgments, to which shall we pay respect, the first or the last judgment?Each is entitled to the same respect as emanating from equal power; and if that which is last in point of time is highest in authority, itself may be superseded by one still later, and its supremacy thus destroyed. The difficulty lies in fixing the limits of its exercise if the power is conceded. If it can be done once, it may be done again. If the first judgment is not conclusive and final, neither can the second or any other be beyond the reach of the revising power, and if it can be done aCthe next term, it can be done also at any succeeding term. If the power is lodged in this court, inferior tribunals may claim the same privilege. There is no revising power over the proceedings of this court, and the power of the court at one term to change or annul its judgments rendered at a preceding term is inconsistent with the idea of supreme judicial authority or a court of last resort. The true limits of such a power is the term at which the judgment was rendered. With that ceases the power of the court over its proceedings, and its records become inviolable memorials of truth. This principle has been heretofore applied by this court to the proceedings of inferior courts in Smith vs. Dudley, 2 Ark. Rep. 66, and in a casevdecided at the last term of this court. This question has also received a full discussion and examination in The People of New York vs. The Mayor and Aldermen of the city of New York, 25 Wendell 252, in which the power was settled as here stated: and the practice in that court has been in accordance with that principle. In that case the subject was ably examined, many precedents cited, and the power of the court to reverse its own decisions not only denied, but its exercise questioned upon its expediency. In England the same rule is well settled in the House of Lords, and, it is said, has been acted upon for a century and a half. The same principles appear to prevail in the supreme court of the United States. In Martin vs. Hunter's Lessee, 1 Wheat. Mr. Justice Story, in delivering the opinion of the court, said a final judgment of the court was conclusive upon the rights which it decided, and that no statute had provided any process, by which the court could revise its own judgments. And until some legislative provision shalf'be made for such review, we are not authorized, upon any principle of law, thus to interfere. Upon both principle and authority the question would seem to be settled.
But even if such a power existed, the policy of exercising it is questionable; as it would in course of time inevitably lead to great abuses. A part from the want of confidence in the stability and uniformity of decisions, which it engenders, it is calculated to encourage applications for a re-hearing in view of a change of sentiment upon the bench from the periodical change of its members. If this question had ever received a deliberate examination in this court, followed by a decision in favor of the power, it should be respected as a binding exposition of our legitimate powers. No such adjudication has ever been made; and, the practice of entertaining motions for rehearing after the term has expired in which a final judgment has been rendered, has silently and without opposition grown up. We will nos attempt now to give our views any retroactive operation, so as to disturb decisions which have heretofore been made. This would be exercising over a decision at a former term the very power which we have here denied.’ For the purpose of disposing of this cause we are willing to regard the order authorizing this cause to be re-heard as suspending the ¿operation of the judgment, and as a refusal to let the transcript of the judgment be taken out. This view seemed to have been adopted when this cause was opened for re-hearing. We express these views here, that the opinion of the court as to its just powers may not hereafter be misunderstood. We must, therefore, in future, regard the decision of any case as final at the term when made and recorded, unless for the correction of mere form or clerical mistake, and that no application for a re-hearing after the term should be considered, unless the court order the judgment to be suspended during the term when it is rendered, and while it is in fieri, and under the control of the court.
The view which we have here taken, renders it necessary to say something of the main questions arising in the cause. In reviewing a judgment of this court, rendered at a previous term, and which was deliberately made upon a review of the whole case, we should not feel authorized to disturb such decision from any slight dissatisfaction with it, or because we might possibly come to a different conclusion. We have given the questions arising upon the record an attentive consideration, and see no reason to differ with the main conclusion upon the merits of the case. The first impressions were against the power of the court to review the case, upon a writ of error, when no new trial had been moved for. This question has, however, been conclusively settled in the supreme court of the United States in Parsons vs. Armor et al. 3 Peters 413, where the principle was extended even farther than in this case, and the revising power of the court exercised over both the law and the testimony at large in the case. We certainly cannot review upon a writ of erior the finding of a jury, unless in some way connected with an erroneous judgment of the court. The judgments of the court below may be reviewed and corrected for errors connected with the verdict in some shape, as in the admission or rejection of evidence or instructions given to the jury, or a refusal to set a aside the verdict. Hence a bill of exceptions cannot be taken to the verdict of the jury, but only to some opinion or act of the court, and were such the case here, the question would present no difficulty. There is an obvious difference however, in considering the verdict of the jury, and the judgment of the court sitting as a jury. The one is the finding of facts under the instructions of the court; the other the result of both law and fact, so mingled as not to be reached in the ordinary mode. No question is made as to the evidence; no instructions given; no motion for a new trial, or for misdirection of the judge. The combined result of any errors which may have been committed, are presented in the judgment of the court. This finding of law and fact is then reached and reviewed together; and to present these properly before the court is the office of the bill of exceptions in the case. The case was, therefore, properly presented before the court, and upon the merits no sufficient cause is seen to change the opinion.