The dismissal of the appeal was decided upon despite a doubt on the part of at least one participating justice, who deemed the question so close that he would not have been averse to a holding tracing to the Legislature an intent to allow an appeal in this special proceeding.
The suggestion was also made in conference, and aroused some interest, that it might be a useful procedural innovation if we were to hold that where an appeal has been allowed to this court and perfected by the filing of a record of the proceedings, and the appeal must be dismissed, as in this case, because the statute fails to afford that remedy, the court may of its own motion, and in a proper case, at its discretion, retain the cause as if on certiorari, deciding such of the contentions, if any, as are open on certiorari. While we concluded against proceeding thus of our own motion, we determined to give the matter further consideration in case the appellant *Page 97 should, as we anticipated that it might, return with an application for certiorari.
Since the argument Mr. Justice HUDSPETH has announced a disqualification to participate further in the cause. Unfortunately the remaining justices, a bare majority, have found themselves divided in principle and thus unable to dispose of this application in a manner to make it a precedent.
The general objection to the application is laches. The particular objection is that an application for certiorari, presented after the lapse of the time within which an appeal may be allowed or a writ of error sued out, comes too late. And this, regardless of any change in the situation of the parties. This view has been adopted in many jurisdictions, and finds support in this court as for the moment constituted.
On the other hand, there is support among us for the view that no purely arbitrary time limit should be placed upon our right to issue certiorari; that the question should always be one of laches strictly; that where the lapse of time has not been accompanied by any change in situation, to the prejudice of a party if his victory should be turned into defeat on review, a delay of six months (now three months), though seriously to be considered, should not necessarily be fatal. Of course, no one contends that the writ should be issued as of right at any time.
A choice between these views must, of course, await concurrence of a majority of the court in one or the other of them, in deciding a cause or adopting a rule. Pending that, however, and without prejudice to either view stated, we attempt a disposition of the present application.
The appellee (continuing the use of that designation) has made no change in its situation in reliance upon its judgment, or at all.
The appeal was granted promptly, on the very day judgment was entered. It was perfected within six weeks and otherwise prosecuted diligently. The present application was made with reasonable promptness following our decision on the appeal. Appellant accepted the decision, not availing itself of its right to move a rehearing. It has diligently pursued its contention, made at the outset by demurrer, that the relief sought, or some of it at least, was unknown to the law and beyond the court's power to grant.
True, it mistook its remedy. And appellee stresses the fact that by its motion to dismiss it warned appellee of its mistake at a time when the remedy of certiorari was still open, if it be deemed to have been available for six months. The motion, of course, was but a claim of counsel. And while we have sustained it, there was not wanting legitimate and somewhat persuasive argument for a contrary holding. The matter was not so plain that any lack of good faith or any disposition to delay can be attributed to appellant's counsel for persisting in their own view and pursuing the broader and more complete remedy.
It is urged that if the proceeding below is void, as appellant claims it is, it has other remedies which should defeat its present *Page 98 application Those suggested would relegate appellant to a court already committed to the principles of the present judgment, and would necessarily involve another resort here, with consequent delay and expense. We have before us a complete record. We have the questions specified and briefed on the part of the appellant. A present decision on the present record is greatly to be desired, seems entirely practicable, and is questionable on technical and procedural grounds only.
Considering the facts of this particular case, being bound by no precedent, being unable to set one without the delay and expense of calling district judges to our aid, disclaiming both the intent and the power to lay down any rule for future cases, we have concluded to grant the application.
We conclude also that the case may stand as if the present record were here in response to certiorari actually issued; that the application may stand as specifying the questions presented by appellant for our decision; that appellant's brief may stand as its presentation of those questions; that appellee may file its answer brief within the usual time; and that the cause may thenceforth proceed in due course.
It is so ordered.
SADLER, C.J., and BICKLEY, J., concur.
HUDSPETH and ZINN, JJ., did not participate.