Opinion
No. 34,784.
May 27, 1949.
Appeal and error — disposition of case by supreme court — recalling remittitur and vacating judgment.
Action in the district court for McLeod county for a divorce, wherein plaintiff appealed to this court from the judgment granting the divorce, Joseph J. Moriarty, Judge. Upon reversal of the judgment appealed from (Kasal v. Kasal, 227 Minn. 529, 35 N.W. [2d] 745) and after the going down of the remittitur, defendant moved to vacate the judgment for costs entered in favor of plaintiff and requiring plaintiff to pay defendant all necessary expenses and reasonable attorneys' fees upon appeal. Motion denied.
Charles L. DeReu and L.P. Johnson, for appellant.
Elmer C. Jensen and Streissguth Berens, for respondent.
On March 14, 1949, defendant filed with this court a motion for an order vacating and setting aside the judgment for costs entered in favor of plaintiff in the sum of $550.25 and requiring plaintiff to pay to defendant all necessary expenses and a reasonable attorneys' fee upon the appeal. The remittitur in the above action (Kasal v. Kasal, 227 Minn, 529, 35 N.W. [2d] 745) was regularly sent down to the trial court on February 15, 1949.
This court is now without authority to recall the remittitur and is without jurisdiction to vacate its judgment herein. The established rule is that "after an appellate court has pronounced its judgment or decree in a cause, and has remitted it to the court below for enforcement, and such remittitur has been filed in the lower court, the jurisdiction of the appellate court is completely divested, and * * * it has no authority to recall the remittitur, unless there has been some irregularity or error in issuing it; as where it was issued contrary to the rules of the court, or where, by reason of a clerical mistake, it does not correctly express the judgment of this court." (Italics supplied.) Rud v. Board of Co. Commrs. 66 Minn. 358, 360, 68 N.W. 1062, 69 N.W. 886. See, Farmers M. State Bank v. Mellum, 174 Minn. 605, 219 N.W. 179; State, by Benson, v. Erickson, 188 Minn. 633, 247 N.W. 687; State v. Waddell, 191 Minn. 475, 254 N.W. 627; 16 Minn. L.Rev. 700; 1 Dunnell, Dig. Supp. § 453.
Motion denied.