J. Holbrook Cushman et al., Executors, etc., Appellants, v. Amos F. Hatfield et al., Respondents

J. Holbrook Cushman et al., Executors, etc., Appellants, v. Amos F. Hatfield et al., Respondents. (Argued April 8, 1873; decided May 6, 1873.) This court has control over its own remittitur, in whosesoever hands it may be, until it is actually-and regularly filedin the court below; and an order of any one of " the judges temporarily staying the filing thereof is valid ' and operative, although, not accompanied by motion papers or notice of motion. Rule 16, of this court, authorizing orders by a single judge to stay proceedings and making them effectual when served with motion papers, has reference to general stays of proceedings in causes pending here. The fact that a remittitur was handed to the clerk, who was served with a stay immediately thereafter, and who thereupon refused to file it and ■ tendered it back to the party offering it, does not constitute a filing. This was a motion on the part of appellants that the remittitur herein be taken from the files of the Supreme Court, .and that the filing thereof he declared void, on the ground that such filing was in contempt of an order of a judge of this court, and for a reargument, etc. The judgment was affirmed February 11th, 1873; the remittitur was received by defendants’ attorney February thirteenth. On the same day an order was granted by one of the judges of this court staying the filing of the remittitur until March fourth. This order was received by plaintiffs’ •attorney February fifteenth, and upon the same day it was served upon the deputy clerk, in the office of the clerk of the Supreme Court, whose duty it was to file remittiturs. The managing clerk of defendants’ attorney swears that just prior to such service he handed the remittitur to the deputy for filing. Upon service of the order the deputy refused to file the remittitur, and offered it back to the clerk, who refused to .receive it, claiming it had been filed. The order was served on defendants’ attorney on the seventeenth of November; notice of motion accompanied it; on the same day an order was entered, making the judgment of this court the judgment of the Supreme Court.' It appeared there had been no filing of the remittitur subsequent to February; a judgment was, however, subsequently entered thereon. Held, that the order staying proceedings was valid and effectual, although unaccompanied by motion papers; that rule 16, of this court, does not apply to such case, but has reference to regular stays in causes pending here; that the handing the remittitur to the clerk, under the circumstances, was not a filing, and that therefore this court had not lost jurisdiction of the case. The motion for reargument was, however, denied. Wm. Watson for motion. A. B. Byett opposed. [MAJORITY — Rapadlo, J.,] Rapadlo, J., reads opinion for denying motion, without costs. All concur. Motion denied.