#### Pringle vs. Dunn and others. (Motion for rehearing.)

Pbactice : Rehearing aeter Judgment. *(1) General rule as to rehearing after judgment. (2-4) Rehearing in this court, after judgment on appeal.*

1. The rule of law goyeming all the courts of this state, including the supreme court, is, that as to all matters on -which the mind of the court did act, or is presumed from the record to have acted, in the rendition of a judgment, it is precluded torn altering its decision at a subsequent term, except as authorized by statute or by general rules of practice established by this court, having statutory force.

2. The provision of sec. 38, ch. 125, R. S., empowering courts, at any time •within one year after notice thereof, to relieve a party from a judgment rendered against him through his mistake, excusable neglect, etc., has no application to judgments of this court on appeals.

3. This court has no power to review its own judgments on appeals after the term at which they are rendered, unless the power is carried over to a subsequent term by motion for rehearing actually made within the rule, and brought to a hearing- within the term at which it is made. But this does not prevent the correction of mere mistakes in the entry of judgment.

4. .Under ch. 264 of 1860 — which requires the clerk of tills court to remit appeal papers to the court below within thirty days after judgment here on the appeal, -unless this court directs them t» be retained for the purpose of a motion for a rehearing, —jurisdiction here of an appeal ceases when the papers are so remitted; and it ceases at the end of the thirty days, even when the record is *not actually remitted,*unless it is retained here *by order of the court*under the statute.

APPEAL from the Circuit Court for *Milwaulcee*County.

' In this action to foreclose a mortgage, the trial court having rendered a judgment in favor of all the defendants, this court, on appeal, at the January term, 1875, held that the mortgage was valid, though not so recorded as to constitute constructive, notice, and that the defendants Mólloy* and Partoz were chargeable with *actual*notice; and it reversed the judgment. *436below as to them. See 37 Wis., 449-468. At the January term, 1876, it appearing that tlie papers in tbe cause bad never been remitted, tliis court, on *Molloy's*motion, directed its clerk to retain them until further order; and on the *21st*of March, *Molloy*asked leave to file a motion for a rehearing as to so much of the judgment as affected him. In support of this motion affidavits of Gf. C. Prentiss, Esq., and John T. Clark, Esq., were read, the substance of which was, that said Clark was a defendant herein, and the judgment of the trial court in his favor was affirmed by the judgment of this court; that *Molloy*took title from Clark, through a mesne conveyance; that Clark defended on the ground that he purchased in good faith without notice of the mortgage in suit, and his deposition showing that he so purchased, and also showing his relation to *Molloy's*title, was read on the trial below, and was included in the bill of exceptions on appeal to this court; but that, through' mistake and inadvertence, this deposition was not mentioned in the printed case, and the relation of *Mol-loy's*title to that of Clark was overlooked in the argument here. Circumstances explaining and excusing this oversight are stated at length; and it is also stated that Mr. Prentiss’ attention was not called to the relation between *Molloy*and Clark until a few days before this motion was made, and that Mr. Clark had not been aware until some time in the same month of the true state of the action, or that the facts as to *Molloy's*title had not been presented to the court.

*I. O. Sloan,*for the motion,

after commenting upon the fact that the bill of exceptions in this cause shows a complete defense in *Molloy's*favor, and insisting that the circumstances set forth in the affidavits fully explained and excused the failure of counsel to present that defense properly to this court in the first instance, and the subsequent delay in moving for a rehearing, contended further, that the statute (Tay. Stats., 1446) gives the court power, in case of a judgment rendered against a party through his “ mistake, surprise or *437excusable neglect,” to relieve bim therefrom within one year after its rendition. *Butler v. Mitchell,*17 Wis., 52. Until a decree is signed and enrolled, all matters are open; and if there be any error in the decree, the court should have an opportunity of amending it. *Brick- v. Fawcett,*3 P. Wins., 8, 241; *Bowker v. Hunter,*2 Dick.,'611. The appellate court does not lose jurisdiction of the cause until the remittitur is actually filed. 7 Paige, 108, 509;- 52 N. Y., 653; 1 id., 239. Courts of equity should bend their rules for the sake of equity and justice. *Beach v. Fulton Bank,*2 Wend., 225, 237. A court having jurisdiction to set aside a judgment has the right to give any less relief by which justice may be obtained, and by which the rights of a party in excusable default may be protected; and the. mode of effecting this object is under the control and subject to the direction of this court. *McOall v. McCall,*54 N. Y., 541. A court of chancery has power, even after enrolment, to open a decree regularly obtained by default, and to discharge the enrolment, for the purpose of giving the defendant an opportunity to make a defense upon the merits, where he has been deprived of such defense either by mistake or accident or by the negligence of his solicitor. *Millspaugh v. McBride,*7 Paige, 509; *Tripp v. Vincent,*8 id., 176; *Beékmcm v. Peck,*3 Johns. Ch., 415; 1 Barb. Oh. Pr. (ed. of 1874), 367. Rehearings m *equity vest*in the sound discretion of the court. *Daniel v. Mitchell,*1 Story, 198; 2 Dan. Ch. Pr., 15'54-5; *Laud v. Wickham, 1*Paige, 256; *Jmfoms v. Flclredge,*3 Story, 299. Rehearing cannot be had after the time for making the motion has expired, *and*the record has been regularly remitted; but the fact that the time is past is no sufficient reason for denying the motion where the record still remains here. *Ogil/oie v. Richardson,*14 Wis., 158; *Mopkvns v. Gilman,*23 id., 512. Relief is granted for the - negligence, ignorance or fraud of the party’s attorney *(Sharp v. Mayor,*31 Barb., 584); for drunkenness of the attorney (7 Rob., 74); for sickness of the defendant *438
      *(Zuseomi v.*Maloy, 26 Iowa, 444); for sickness of defendant’s wife, and much, business of bis attorney. *Hill v. Crwng),*24 Ind., 291.

In *Allerding v. Cross,*15 Wis., 530, tbe judgment below was affirmed here November 1, 1861; motion for leave to file a motion for a rebearing was made February 11, 1862, and allowed March 15th, and tbe rehearing granted on tbe lst'of September following.

*JE. Marimer, eontra.*

In the former report of this case, the name of this defendant is given in, the form *Maloy.*

RyaN, C. J.

There were numerous defendants in this cause, respondents in this court, and tbe record was voluminous and complicated. Tbe appeal was_ argued at tbe bar for some five days, early in tbe June term, 1874, and was decided tbe last of May in tbe January term, 1875. Tbe latter term was not finally adjourned until July; so that tbe time for moving for a rehearing under tbe rule expired in June, 1875.

Tbe respondent *Thomas Molloy*now moves for leave to make a motion for rehearing. And tbe only question on tbe motion is, whether such leave should now be given. Tbe merits of tbe appeal are not before us, as upon a rehearing, but only tbe question whether tbe appeal should be now brought again before us for rehearing. And we take tbe occasion to say that parties failing to move in time for rehearing cannot, by a motion for relief from this failure, make an opportunity for themselves, as was done in this case against our protest, to argue tbe merits of tbe rehearing at tbe bar, which tbe rule prohibits when tbe motion is made in time. Tbe argument of such motions, as of all motions, must be confined to tbe merits of tbe motions themselves.

We did not understand counsel for tbe motion as expressly relying on sec. 38, ch. 125, R. S., to aid tbe right to move for rehearing now, on tbe ground of tbe party’s mistake, inadvertence, surprise or inexcusable neglect, in not making tbe motion in time. But bis argument indicated a reliance on that *439section. It may be doubted whether any provision of the section was intended to apply to proceedings in this court within its appellate jurisdiction. Certainly the provision for relief against judgments for a year after notice of them, can have no application to judgments in causes which cannot remain in the court longer than thirty days, unless ordered by «the court within that time to remain here for the purpose of immediate rehearing. On questions whether steps may be taken here *nunc fro tu/nc*in proper cases, however, we should be influenced by the statutory rule of relief, excusable neglect, ¡etc. And we may say here that, if a motion for a rehearing of this cause should have been made by this respondent, he appears not only to have neglected to make it in due time, but to have neglected all inquiry or thought of the grounds of making it, all attention to the judgment which he asks to be reconsidered, for some nine months after it was rendered. ■Such long, passive inattention and indifference are surely neglect, but it would be difficult to consider it excusable. *Won •dormientibus jura subservwnt.*The statute was not designed to license mere apathy in suitors. Assuming the error imputed to the judgment, such negligence, so persevering, appears to us gross and inexcusable.

The rights of the respondent making this motion were expressly passed upon by the court. *Pringle v. Dunn,*37 Wis., 449. “ It is well established by the rules of the common law, that a court has no power to review its own judgment of a previous term; that is, as to all matters on which the mind of the court did act, or is presumed from the record to have acted, in the rendition of the judgment, it is precluded from again acting, at a subsequent term, and changing its opinions or altering its decisions.” *Ætna Co. v. McCormick,*20 Wis., 265. This has been the constant rule in this state. See *Scheer v. Keown,*34 Wis., 349, and several later cases. And this court forms no exception to the rule. *Hungerford v. Cushing,*8 Wis., 324; *Hill v. Hoover,*5 id., 386.

*440Courts can of course take power by statute to review their judgments at subsequent terms, as in certain cases by ch. 125,. see. 88, R. S., and by general rules of practice established by this court, having statutory force. *Att'y Gen. v.*Lum, 2 Wis., 507.

In this court, judgments within its appellate jurisdiction can be reviewed only upon rehearing granted upon motion-made within the rule. The original rule (3 Pin., 494) did,, and the present rule (3 Pin., 503) may, carry the right to-move for rehearing over to the tenn succeeding the judgment.. That works so far an exception to the general rule that this court cannot review its judgment at a subsequent term. But when motion for rehearing is not made within the rule, and even when made but not brought to a hearing at the term at which it is made, the court is powerless to review its own judgment. *Pierce v. Kneeland,*14 Wis., 341. And so this court has üo power to review its own judgments on appeals after the term at which they are rendered, unless the power is carried over to a subsequent term by motion for rehearing; actually made within the rule. Of course this does not prevent the correction of mere mistakes in the entry of judgment. *Hill v.*Hoover, *supra.*

We were referred, on the argument of this motion, to several cases showing the practice of courts of original jurisdiction elsewhere. These have no application here. Since the-argument, we have been referred to *Allerding v. Cross,*15 Wis., 530. RTothing in the report of that case is in conflict with the views here expressed, or with the cases cited in support of them. But it is true, as counsel suggests, that it appears by the record of that case that the time for moving for rehearing under the rule expired within the term of the judgment; and that leave to make the motion was granted at a subsequent term. The report of the case, and the opinion on the rehearing, take no notice of the difficulty, which was-greater than that which prevailed in *Pierce v. Kneeland,*re*441ported in tbe preceding volume. And tbe ruling, in view of tbe difficulty, is so obviously in conflict with so many previous decisions against tbe power of tbe courts of tbis state to review tbeir judgments at a subsequent term, amongst tbe rest, a very strong case decided at tbe same term and reported in tbe same volume *(Spafford v. Janesville,*15 Wis., 474), tbat it appears evident that tbe point was wholly overlooked in *Allerding v. Cross.*Tbe result is a latent inconsistency between tbat case and all other cases in tbis court on tbe subject, previous and subsequent, which leaves it without authority beyond tbe letter of tbe report. On. tbis question, it stands like any other case which overlooks a point fatal to tbe determination. Had the error by tbe record been disclosed by tbe report, tbe uniform current of decision in tbis .court leaves no room for doubt tbat tbe case, so far, would have been overruled long ago.

Before cb. 264 of 1860, we are not aware tbat any statute fixed the time for tbe remission of appeal papers from this court to tbe courts below. Arid tbis court appears to have considered its jurisdiction over appéals to have continued, for some purposes, so long as tbe record actually remained here. *Hopkins v. Gilman,*23 Wis., 512; *Esty v. Sheckler,*36 id., 434. But tbe statute of 1860 requires tbe clerk of tbis court to remit appeal papers to tbe court below within thirty days after judgment here on tbe appeal, unless tbis court directs them to be retained for tbe purpose of a motion for rehearing. And when tbe papers are so remitted, all jurisdiction here of tbe.appeal ceases. *Hopkins v. Gilman, Esty v.*Sheckler, *supra.*

And we are obliged to bold tbat, even when tbe record is not actually remitted, tbe statute takes away tbe jurisdiction of tbis court over appeals after thirty days from judgment on them; unless tbe record is retained here by order of tbe court under tbe statute. Tbe statute itself regulates our jurisdiction; not tbe compliance or noncompliance of tbe clerk with *442its provisions. The mere omission of the clerk to remit the record, tbe mere accident that the appeal papers remain here notwithstanding the statute, cannot operate to continue the jurisdiction of the court against the words of the statute. We had occasion to examine this provision very fully in considering E*sty v. Sheckler,*and then came to this conclusion, although it was not necessary to express it in deciding that case. And for the purpose of facilitating motions for rehearing, we then gave general directions to the clerk to retain all appeal papers here for the full time allowed by the statute.

We must therefore hold that the court has lost all jurisdiction over the judgment on this appeal; and that we have no power to grant this motion, because it is made at a term subsequent to the judgment on the appeal, and after the time when the statute permits the record to remain here. If the judgment did injustice to the respondent making this motion, we deeply deplore that his own laches has left us powerless to correct it. The respondent was represented on the argument by two counsel of ability and learning. His case was specially presented orally and in a printed brief. All the points made for him were carefully considered and decided; and we have no doubt correctly. It is now claimed for him that another point should have been made on his behalf, which was overlooked by his counsel, and which rested on facts not appearing in the printed case. If that be so, we regret it on his account and on our own; but we cannot hold ourselves responsible for it. In the decision of causes before us, we must .necesssarily depend largely on the presentation of them by counsel. The duties of the bar are almost or quite as essential to the intelligent administration of justice, as the duties of the bench. With all the aid we receive from the bar, we are barely able, by incessant labor, to keep the business of the court from running in arrear. We endeavor faithfully to investigate causes before us. If we find points not raised at the bar, we pass upon them. But if, as a rule, we should de*443cline all reliance on tbe investigations of counsel,' and assume to wade through all the records coming before us for all possible points arising upon them, and so perform over again the duties of the bar, we should at once so far fail in our own duties as to delay justice, which would sometimes be equivalent to denial of justice. It is in part to save us from this overwhelming labor, that printed cases and briefs are required in every appeal. "We must presume, as a rule, that counsel faithfully investigate and present the rights of their clients. And if parties claim to have suffered by mistake or neglect of counsel, and seek redress through the same or other counsel, they must do so with such diligence that they can overtake the jurisdiction of the court in the cause; so that they maybe again heard, without overriding the rules of law which go to the peace of society by the final end of litigation. *Interest reypvMñeee ut sit finis liti/wm,.*This maybe a hard case. It is said that-hard cases are apt to make bad law. It is a sore temptation to us in this case, if our judgment did the injustice to the respondent imputed to it. But we must administer the law on general principles, and dare not disregard them in hard cases. "We have no plenary jurisdiction to bend the law to particular cases, or to administer justice, outside of its Ordained forms and proceedings, as counsel invoked us to do. All human judgments are fallible,' but are none the less final. And it is better that occasionally a hard judgment should be final, than that all judgments following upon litigation should remain open to inquiry whether they be har'd or not. In the nervous language of DixoN, O. J.: “If such a practice were tolerated, no one knows where it would end. Parties would never be secure in their rights, and judgments would be of as little account as the course of the .wind.” *Spafford v. Janesville.*

*By the Court.*— The motion is overruled.