ZIMMERMAN v. KITZAN, 79 N.D. 365 (1953)

56 N.W.2d 208

SOLOMENA ZIMMERMAN, and John F. Schneider as Administrator of the Estate of Gottlieb Zimmerman, Appellants, v. EMMA KITZAN, Hilda Kitzan Heinle, Walter Kitzan, Florence Kitzan Metzger and Christ Kitzan, Respondents.

File No. 7257Supreme Court of North Dakota.
Opinion filed November 21, 1952. Rehearing denied January 8, 1953

Appeal from the District Court of Morton County, Honorable J. O. Wigen, Judge.

J. K. Murray, for appellants.

Milton K. Higgins, for respondents.

PER CURIAM:

Upon a former appeal in this case, 77 N.D. 477, 43 N.W.2d 822, we affirmed an order of the district court granting a new trial. In proceedings in district court after remand, the attorney for defendants moved the court to vacate the order which this court had affirmed. The district court granted the motion and entered an order vacating the order granting a new trial. This appeal is from that order.

Page 366

There is no question but that the order appealed from was beyond the power of the district court. In effect the vacation of an order affirmed by this court is a vacation of an order of this court. Unless the decisions of this court are clothed with finality “litigation would never be ended, and the supreme tribunal of the state would be shorn of authority over inferior tribunals.” 3 Am Jur (Appeal and Error Sec 1236) 732, see also, 5 CJS (Appeal and Error Sec 1964) 1501, 1502; Walker v. Young, et al., 93 Fla. 29, 111 So. 516; Jacobson v. Mutual Benefit Health and Accident Assn., 71 N.D. 542, 3 N.W.2d 239; Colter v. Dill, 49 N.D. 902, 193 N.W. 662; Weigel v. Powers Elevator Co., 50 N.D. 776, 198 N.W. 121.

The order appealed from is reversed.

MORRIS, C. J. and BURKE, SATHRE, CHRISTIANSON and GRIMSON, JJ., concur.