¶2delivering the opinion.
¶3We think the circuit judge was right in making the remittitur the foundation of a judgment of affirmance in the court below. It showed two things — 1st, that the two judges, who alone presided in the case, disagreed.; and, 2dly, that the case was stricken from the docket. Pursuing, therefore, the practice hitherto adopted, both upon principle and authority, and acted upon in a number of cases similarly situated, the circuit judge entered a judgment of affirmance in the court below.
¶4It is argued that in as much as no formal order was passed directing this case to be stricken from the docket, the entry on the minutes to that efiect was a clerical mistake, and should be corrected. To which it may be satisfactorily replied, that the minutes of the court containing this entry were read and approved by the court; and thus its official sanction was deliberately given to this entry.
¶5This being so, no principle is better settled of more universal application that no court can annul its own judgment for error of fact or of law, after the term at which it has been rendered. — 12 Peters, 491; 3 Howard, 413; 25 Wendell, 252; 14 Ala. 648; 15 ib. 802. By the constitution and organic law, this case had to be heard and determined at the last term, unless prevented by providential cause. It was heard. The determination of the court was to strike it from its docket, not by accident, but with the understanding that the direction thus given to it would operate as an affirmance of the judgment below. It is too late to reach and reverse this action.
¶6The case of Burwell, Jordan et el. against Brigham, Kelly & Co., occupies the same position; and consequently the motion to reinstate this case must be denied for the same reasons.
¶7For myself, I am free to say, that I put my judgment *392in these cases upon broader grounds.. I hold in conformity with the practice in the House of Lords in England, when sitting as a court of errors in the last resort — with the court of errors, in New York, in South Carolina, in "Virginia, and so far as I have examined, every other State in the confederacy, in the Supreme Court of the United States, and I believe every other court in the civilized world, (except where by positive enactment provision is made for a rehearing,) that a failure to reverse on account of a.divided court is equivalent to a judgment of affirmance; and that there is nothing in the constitution or act of 1845 establishing this tribunal, to necessitate a contrary rule, when one of the three judges is absent from providential cause, or disqualified from . presiding on account of some personal disability, such as being a party — of kindred to the plaintiff or defendant, &c.
¶8If it be the good pleasure of the legislature to make provision for any or all of these cases, let it do so by statute.
¶9Judgment affirmed.