Zeigler v. Vance

Wright, C. J.

The determination of this question, involves the construction of section 1552 of the Code, which reads as follows: “ Where the court is equally divided in opinion, the cause must stand for a re-argument, unless the the third judge is legally disqualified from serving. In such cases, the judgment of the District Court shall stand affirmed, but the decision is of no further force or authority.” This section contemplates: First. A state of case, where one of the judges shall be absent, but who is not disqualified from taking part in the determination of the particular cause. In such a case, if a division of opinion occurs, the cause is to stand for re-argument. If, however, as in the case before *530 us, a division occurs, and such third judge is legally disqualified from serving, from interest, consanguinity, or otherwise, the judgment appealed from, is to stand affirmed. And the argument is, that the judgment in such an event, is not the result of a concurrence of opinion, but is, that judgment which follows as a legal and necessary sequence from the non-concurrence of those members of the court who alone can take part in the decision; that when such an affirmance takes place, the cause is beyond the reach of the court; that the rights of the parties are settled by the law, and not by the court; that on such non-concurrence, the defendant had a legal right to have the judgment of the court below stand; and that there is no power to afterward s disturb or interfere with the right so acquired. Let us ask, what is a judgment ? We answer, that in the broadest sense, under our law, it is the final adjudication of a civil action. Such final adj udication is not the resolve or decree of-the court, but the sentence of the law pronounced, by the court, in the action or question before it. The judgment is the act of the law, delivered by the court; or, as it is in some instances defined, the remedy prescribed by the law, for the redress of injuries, the suit or action being the vehicle or means of administering such remedy. With this definition in view, w.e are unable to see in what the judgment in this case, differs from that pronounced in any other case, or in those cases in which there is a concurrence of the tribunal in granting or refusing the remedy sought. If this court concludes that the judgment of the court below should be affirmed, this is but the sentence of the law, and the affirmance follows. If the conclusion is, that the action of the District Court has been erroneous, then the like sentence reverses the case, and the parties are, so long as such judgment shall stand, entitled and subject to all the rights and liabilities resulting from such an order. In either event, the rights of the parties are settled by the law, the court having only applied the law to the questions presented. So, in this case, the law contemplates the same deliberation; the same applications of the law ; and if after such deliberation, it is considered — consideratum est per curiam — that the *531 two minds cannot concur, the law says, there shall be an affirmance. But suppose the two minds, upon more mature and further consideration, do concur in the application of the law, why may not the court act upon the question further, and pronounce what, after dne deliberation, is believed to be the sentence of the law ? Where there is concurrence in the first instance, the judgment is regarded as settling the rights of the parties. If, however, on application afterwards properly made, it should be considered, that the judgment pronounced was not the legal sentence which ought to follow, the question may be again considered, and the rights of the belligerents be again adjudicated; and whether the judgment pronounced, shall be the result of concurrence or non-concurrence, the sentence which follows is that of the law, and is alike under the control of the court during the term at which it is rendered. We can see no reason, in practice or theory, why the rights of a party ip case of non-concurrence, are or should be more fixed or vested, or less liable to be disturbed or defeated, than when such rights are settled as the result of concurrence. We think the motion should be overruled.

Applications for rehearing are presented under the rules of this court, by the unsuccessful party. The opposite party has, on such applications, no hearing. In this case, the defendant states, that he had no notice of the order granting the rehearing, until yesterday; and that it will be impossible for him to prepare for argument at this term. We tbinlr that under such circumstances, he is entitled to a continuance. After the order affirming the case, he would not be bound to take notice of any subsequent steps taken by his adversary, or any action of the court, until notified thereof, and after such notice, was entitled to a reasonable time to prepare for the re-argument. Cause continued.