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Cases on Procedure Annotated, Trial and Appellate Practice, By _ CHAPTER X. DISPOSITION OF CASE UPON REVIEW. SECTION 1. HEARING AND REHEARING. BRODIE v. FITZGERALD. Supreme Court of Arkansas. 1892. 55 Arkansas, 460. COCKRILL, C. J . The case comes up on a motion to advance it on the docket for hearing out of its regular order, upon the suggestion that the public interest is involved. The mo tion sets forth the following state of facts: “Alexander Haker devised to Edward Fitzgerald, as bishop of the Cath olic Church, certain real property in the city of Little Rock, Arkansas, the rents and profits of which were to be used in maintaining a hospital in said city. Soon thereafter Edward Fitzgerald obtained from the Pulaski chancery court an in junction restraining John Brodie, as county clerk, from ex tending the taxes against said property, which consists of and is rented for store-houses and dwellings.” According to the numerical practice of this court, no case can be taken up out of its order in the calendar, even by consent, where private or local interests only are concerned, unless the stat ute has otherwise specified. It is incumbent upon the court to see to it that the unnecessary advancement of causes out of their order does no injustice to other litigants, the hearing of whose causes has already been delayed by the crowded state of the docket. Vaught '0. Green, 51 Ark. 378, 11 S. W. Rep. 587. The fact that a case is of public importance or interest, or that the interest of many persons in many local ities depend upon it, does not, of itself, entitle the parties to have it heard out of its order. To make it a question of public interest, within the meaning of the practice which (1155) 1156 TRIAL AND APPELLATE PRACTICE [Chap. 10 gives preference to such cases, the administration of public affairs—that is, the government—must in some way be in volved. And then only the party representing the govern mental interest can be heard to raise the question. In such a case the practice is to refuse to advance the cause unless it is made to appear that the unsettled condition of the ques tion will embarrass the operation of the state government or of some one of the political subdivisions of the state. It is accordingly the practice to refuse to advance a contest about a county-seat, which is always a matter of great public interest in the county where it arises, unless the controversy has left the question of the location of the seat of justice in doubt, and makes it probable that confusion will arise in the administration of the law. In the annexation of new terri tory to a city, the assumption of jurisdiction by the city over the new territory before the right is finally settled might create confusion in all departments of the city government, (Black ii. Brinkley, 54 Ark. 372, 15 s. W. Rep. 1030), and the case is advanced to prevent it. Contested election cases have been advanced upon the theory that they in volve the due administration of the law, because the peo ple have the right to have the law enforced by those whom they have elected. The only other class of cases to which the practice has been applied is such as involves the public revenue. Numerous cases under that head have been ad vanced. But the reason upon which the practice is based it is limits it to cases in which made to appear that the ques tion involved is such as to materially embarrass the opera tion of the state or of a county or municipal government. The present case does not present that state of things. For aught that appears, the property involved is a small part of the taxable property of the county and city, and the question presented affects the taxation of that property alone. It is not shown, then, that any department of the government will be in any wise embarrassed by the delay. The motign is denied. l I Sec. 1] DISPOSITION or CASE UPON REVIEW 1157 POWERS v. STURTEVANT. Supreme Judicial Court of Massachusetts. 1909. 200 Massachusetts, 519. KNOWLTON, C. J . This is an appeal by the defendant from an order of the superior court that judgment be entered for the plaintifl’. The appeal is founded upon the fact that an application for a rehearing, on account of a supposed error in law in the decision of the case by the full court, had been sent to the Chief Justice, and the receipt of it had been ac knowledged, with a statement that it would be considered by the justices at their next meeting for consultation. The ap plication was sent in July, and the next meeting of the jus tices was to be on the first Tuesday of September. The defendant seemingly misapprehends the standing of a case after a final decision of it by the full court upon ques tions of law. On this subject Chief Justice Gray said, in the opinion in Winchester '0. Winchester, 121 Mass. 127-130: “The practice of that court [the English Court of Chan cery] affords no rule to govern a court of last appeal, whose judgments have the strongest presumptions in their favor, and cannot be freely reconsidered without unreasonably pro tracting litigation and disregarding the claims of other suit ors to the attention of the court. “After final judgment in the House of Lords or in the Judicial Committee of the Privy Council, no rehearing is al lowed, unless for the purpose of correcting mistakes in the form of the decree. * "‘ " In the Supreme Court of the United States no rehearing of a case once decided is granted, nor even an argument permitted upon the question whether a rehearing should be had, unless the court, upon inspection of the petition for a rehearing, sees fit so to order, “ ' * and this court, for some years past, has conformed to that practice as essential to the disharge of its increasing busi ness.” He supports his statements as to the practice in England and in the Supreme Court of the United States by numerous citations. A similar practice prevails generally in the courts of last resort in the states of this country, although there are two or three, and possibly more, in which applications 1158 TRIAL AND APPELLATE PRAcTIcE [Chap. 10 for a rehearing of questions of law are entertained and argu ments heard upon them. The application in Winchester 1'. Winchester, ubi supra, was on the ground that a decree had been entered erroneously as by consent of the parties, when in fact there was no consent. The court received the applica tion without hearing argument upon it, and announced a decision refusing a rehearing. In cases of applications for a rehearing on the ground of a supposed error of the full court, it has been the practice, for many years, not to treat them as having any standing as a part of the legal procedure in the case. They are not recognized by our statutes. They cannot be made as a matter of right, and they are not entered upon the records of the court unless the justices, in their discretion, think they ought to be. Of course there is a possibility of error in a decision by the most learned and painstaking court in the world. The jus tices of the Supreme Court of the United States, and of other distinguished tribunals, are often nearly evenly divided in opinion upon a difficult question of law. But when a de cision is made, after a court’s best efforts to reach a correct conclusion, it ought not to be open to revision merely because it seems to the defeated party to be wrong. On the other hand, if by any accident, "oversight or inadvertence a wrong conclusion should be reached in any case, the judges who made the decision presumably would be more desirous than any one else to correct the error. Accordingly, in such a case they would welcome a suggestion in the interest of justice, from anybody, at any time while they have power to revise the decision. The practice of the court in reference to such suggestions from a party is stated in Wall v. Old Colony Trust Company, 177 Mass. 275-278, 58 N. E. 1015, 1016, as follows: “Such an application has no standing under our laws as a recognized part of our procedure, but is received only as friendly information to the justices of an oversight or manifest error, which, in the opinion of the justices, should call for correction or reargument. Argument is not heard upon such an application, nor should the ap plication itself contain any argument, but it should suggest the error relied on.” If such a suggestion indicates an error the court, of its own motion, will do anything in its power to accomplish justice and protect the rights of the parties. But happily there is seldom occasion to do anything of this Sec. 1] Drsrosmou or Cass UPON Rsvnzw 1159 I kind, and it would be likely to work injustice rather than justice, to permit a party, by presenting such an application, to postpone as of right the entry of final judgment, after a case has been through all the earlier stages of litigation, and has been finally decided with due deliberation by the court of last resort. If the justices, after receiving such an application, do not recall the rescript, or otherwise suggest a postponement of action by the lower act, the action of that court should be governed by the rule stated in Shannon 'v.
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