_ CHAPTER X.

DISPOSITION OF CASE UPON REVIEW.

SECTION 1. HEARING AND REHEARING.

BRODIE v. FITZGERALD.

Supreme Court of Arkansas. 1892.

55 Arkansas, 460.

COCKRILL, C. J . The case comes up on a motion to advance it on the docket for hearing out of its regular order, upon the suggestion that the public interest is involved. The mo tion sets forth the following state of facts: “Alexander Haker devised to Edward Fitzgerald, as bishop of the Cath olic Church, certain real property in the city of Little Rock, Arkansas, the rents and profits of which were to be used in maintaining a hospital in said city. Soon thereafter Edward Fitzgerald obtained from the Pulaski chancery court an in junction restraining John Brodie, as county clerk, from ex tending the taxes against said property, which consists of and is rented for store-houses and dwellings.” According to the numerical practice of this court, no case can be taken up out of its order in the calendar, even by consent, where private or local interests only are concerned, unless the stat ute has otherwise specified. It is incumbent upon the court to see to it that the unnecessary advancement of causes out of their order does no injustice to other litigants, the hearing of whose causes has already been delayed by the crowded state of the docket. Vaught '0. Green, 51 Ark. 378, 11 S. W. Rep. 587. The fact that a case is of public importance or interest, or that the interest of many persons in many local ities depend upon it, does not, of itself, entitle the parties to have it heard out of its order. To make it a question of public interest, within the meaning of the practice which

(1155) 1156 TRIAL AND APPELLATE PRACTICE [Chap. 10 gives preference to such cases, the administration of public affairs—that is, the government—must in some way be in volved. And then only the party representing the govern mental interest can be heard to raise the question. In such a case the practice is to refuse to advance the cause unless it is made to appear that the unsettled condition of the ques tion will embarrass the operation of the state government or of some one of the political subdivisions of the state. It is accordingly the practice to refuse to advance a contest about a county-seat, which is always a matter of great public interest in the county where it arises, unless the controversy has left the question of the location of the seat of justice in doubt, and makes it probable that confusion will arise in the administration of the law. In the annexation of new terri tory to a city, the assumption of jurisdiction by the city over the new territory before the right is finally settled might create confusion in all departments of the city government,

(Black ii. Brinkley, 54 Ark. 372, 15 s. W. Rep. 1030), and the case is advanced to prevent it. Contested election cases have been advanced upon the theory that they in volve the due administration of the law, because the peo ple have the right to have the law enforced by those whom they have elected. The only other class of cases to which the practice has been applied is such as involves the public revenue. Numerous cases under that head have been ad

vanced. But the reason upon which the practice is based it is limits it to cases in which made to appear that the ques tion involved is such as to materially embarrass the opera

tion of the state or of a county or municipal government. The present case does not present that state of things. For aught that appears, the property involved is a small part of the taxable property of the county and city, and the question presented affects the taxation of that property alone. It is not shown, then, that any department of the government will be in any wise embarrassed by the delay. The motign is denied. l I Sec. 1] DISPOSITION or CASE UPON REVIEW 1157

POWERS v. STURTEVANT.

Supreme Judicial Court of Massachusetts. 1909.

200 Massachusetts, 519.

KNOWLTON, C. J . This is an appeal by the defendant from an order of the superior court that judgment be entered for the plaintifl’. The appeal is founded upon the fact that an application for a rehearing, on account of a supposed error in law in the decision of the case by the full court, had been sent to the Chief Justice, and the receipt of it had been ac knowledged, with a statement that it would be considered by the justices at their next meeting for consultation. The ap plication was sent in July, and the next meeting of the jus tices was to be on the first Tuesday of September. The defendant seemingly misapprehends the standing of a case after a final decision of it by the full court upon ques tions of law. On this subject Chief Justice Gray said, in the opinion in Winchester '0. Winchester, 121 Mass. 127-130: “The practice of that court [the English Court of Chan cery] affords no rule to govern a court of last appeal, whose judgments have the strongest presumptions in their favor, and cannot be freely reconsidered without unreasonably pro tracting litigation and disregarding the claims of other suit ors to the attention of the court. “After final judgment in the House of Lords or in the Judicial Committee of the Privy Council, no rehearing is al lowed, unless for the purpose of correcting mistakes in the form of the decree. * "‘ " In the Supreme Court of the United States no rehearing of a case once decided is granted, nor even an argument permitted upon the question whether a rehearing should be had, unless the court, upon inspection of the petition for a rehearing, sees fit so to order, “ ' * and this court, for some years past, has conformed to that practice as essential to the disharge of its increasing busi ness.” He supports his statements as to the practice in England and in the Supreme Court of the United States by numerous citations. A similar practice prevails generally in the courts of last resort in the states of this country, although there are two or three, and possibly more, in which applications 1158 TRIAL AND APPELLATE PRAcTIcE [Chap. 10 for a rehearing of questions of law are entertained and argu ments heard upon them. The application in Winchester 1'. Winchester, ubi supra, was on the ground that a decree had been entered erroneously as by consent of the parties, when in fact there was no consent. The court received the applica tion without hearing argument upon it, and announced a decision refusing a rehearing. In cases of applications for a rehearing on the ground of a supposed error of the full court, it has been the practice, for many years, not to treat them as having any standing as a part of the legal procedure in the case. They are not recognized by our statutes. They cannot be made as a matter of right, and they are not entered upon the records of the court unless the justices, in their discretion, think they ought to be. Of course there is a possibility of error in a decision by the most learned and painstaking court in the world. The jus tices of the Supreme Court of the United States, and of other distinguished tribunals, are often nearly evenly divided in opinion upon a difficult question of law. But when a de cision is made, after a court’s best efforts to reach a correct conclusion, it ought not to be open to revision merely because it seems to the defeated party to be wrong. On the other hand, if by any accident, "oversight or inadvertence a wrong conclusion should be reached in any case, the judges who made the decision presumably would be more desirous than any one else to correct the error. Accordingly, in such a case they would welcome a suggestion in the interest of justice, from anybody, at any time while they have power to revise the decision. The practice of the court in reference to such suggestions from a party is stated in Wall v. Old Colony Trust Company, 177 Mass. 275-278, 58 N. E. 1015, 1016, as follows: “Such an application has no standing under our laws as a recognized part of our procedure, but is received only as friendly information to the justices of an oversight or manifest error, which, in the opinion of the justices, should call for correction or reargument. Argument is not heard upon such an application, nor should the ap plication itself contain any argument, but it should suggest the error relied on.” If such a suggestion indicates an error the court, of its own motion, will do anything in its power to accomplish justice and protect the rights of the parties. But happily there is seldom occasion to do anything of this Sec. 1] Drsrosmou or Cass UPON Rsvnzw 1159 I kind, and it would be likely to work injustice rather than justice, to permit a party, by presenting such an application, to postpone as of right the entry of final judgment, after a case has been through all the earlier stages of litigation, and has been finally decided with due deliberation by the court of last resort. If the justices, after receiving such an application, do not recall the rescript, or otherwise suggest a postponement of action by the lower act, the action of that court should be governed by the rule stated in Shannon 'v. Shannon, 10 Allen, 249, in these words: “The application to the court, holden by a single judge, to postpone entering judgment for the purpose of affording the party an oppor tunity for a reargument upon a case already decided by the full court, was a matter within the discretion of the judge, and his ruling refusing such application does not furnish any ground for a bill of exceptions.” On the face of the record the case was ripe for judgment, and there was no error of law in making the order. Judgment aflirmed."

15 Any party is entitled as of right to apply for a rehearing,-—Cum mings v. Nielson, (1913) 42 Utah. 157; but there is no right to have it granted in the absence of statute. The matter is usually regulated by rules of court.—Hanson v. McCue, (1872) 43 Cal. 178; Florida Land Rock Phos. Co. v. Anderson, (1905) 50 Fla. 516; Columbia Min. Co. v. Holter, (1872) 1 Mont. 429. Statutes or rules of court sometimes allow a rehearing as of right in case of dissent in the oourt as in 3 Mich. C. L. (1915) § 12010. “A rehearing will not be granted unless a plain error appears upon the record probably requiring a reversal."—De Bolt v. McBrien, (1914) 96 Neb. 237. “The oflice of a petition to rehear is to call the attention of the court to matters overlooked, not to those things which the counsel supposes were improperly decided after full consideration."-—Louisville & Nash. RR. Co. v. Fidelity Co., (1911) 125 Tenn. 658, 691. “If rehearings are to be had until counsel on both sides are entirely satisfied, I fear, that suits would become immortal.”-—Story, J., in Jen kins v. Eldredge, (1845) 3 Story, 181, 305. See further discussion of the serious disadvantages of rehearings in Brown v. Aspden, (1852) 14 How. (U. S.) 25. New points, not raised or argued on the first hearing, cannot be availed of on a rehearing.—Murphy v. Cooper, (1910) 41 Mont. 72; Gamble v. Silver Peak Mines. (1913) 35 Nev. 319; Gardner v. City of Bluffton. (1910) 173 Ind. 454; Mcwilliams v. Ry. Co., (1913) 172 Mo. App. 318; Goo<‘.eve v. Thompson, (1914) 68 Ore. 411; Van Dyke v. Cole, (1908) 81 Vt. 379; Tazewell v. Herman, (1908) 108 Va. 416; State v. City of Birmingham, (1909) 160 Ala. 196. SCOIIC of Rehearing. A rehearing cannot be employed merely as a means of rearguing the whole case.—-Cummings v. Nielson, (1913) 42 1160 TRIAL AND APPELLATE PRACTICE [Chap. 10

Utah, 157; Goodwin v. Goodwin, (1874) 48 Ind. 584. In some states. however, the practice allows the whole case to be re-opened on rehearing unlcss the order granting it imposes limits.—Fish v. Poorman. (1911) 85 Kan. 237; Palmer v. Mizner, (1903) 70 Neb. 200. It is not uncommon tor the court in its order allowing a rehearing, to specify upon which of the stated grounds it will be allowed.—Ivie v. King, (1915) 169 N. C. 261; Christy v. Burch, (1889) 25 Fla. 978. Oral argument on petition or motion tor rehearing is permitted only in cases of the greatest importa.noe.—Parker v. State, (1912) 7 Okl. Cr. 238.

GRATIOT v. MISSOURI PACIFIC RAILWAY CO.

Supreme Court of Missouri. 1898.

116 Missouri, 450.

BARCLAY, J . This case reached the court in banc by trans fer from the second division at the October term, 1891, after steps shown in the report of the case in 16 S. W. Rep. 384, and 19 S. W. Rep. 31. Our jurisdiction to review upon the merits is seriously challenged by plaintiif’s counsel. The chronology of the material proceedings in the divisional court is this: April term, 1891 :—April 23, 1891, cause argued and submitted; May 19, 1891, judgment aflirmed, opinion by Thomas, J.; May 26, 1891, motion for rehearing filed; Octo ber 12, 1891, motion for rehearing overruled; opinion by Thomas, J. October term, 1891:—October 14, 1891, motion to set aside order overruling motion for rehearing filed; De cember 22, 1891, last motion sustained, rehearing granted, and cause transferred to court in banc, (Thomas, J., dissent ing.) The April term, 1891, expired ‘after the motion for rehearing was denied, and the steps to set aside the overrul ing order were taken at a later (the October) term, 1891. This last “motion to set aside,” etc., is based on grounds dis puting the correctness of the legal propositions advanced in the divisional opinions. It does not assert any irregularity of procedure in reaching the result in the case. The plain tiff, on the other hand, insists that the motion was improvi dently sustained, and that it was beyond the constitutional powers of division N0. 2 to set aside its final judgment of the former term in that manner. Sec. 1] DISPOSITION or CASE UPON Rsvmw 1161

It is plain that there must be a stage of every cause at which further investigation of its merits ceases. The interests of justice demand the establishment of some fixed terminal point to litigation. That point is ordinarily understood to be the close of the term of final judicial action in the case. But it may generally be moved further forward by appropriate steps, taken at that term, if authorized by law. Successive motions for review, in indefinite series, obviously cannot be tolerated by any court, though it is not so easy to mark the point at which they must stop. A standing rule here permits the filing of a motion for rehearing on-certain stated grounds, (102 Mo. Append. Rule 20, 16 S. W. Rep. vii.,) and in many instances those motions prove of great service and value to the court; but when one is denied, and the term thereafter lapses, we discover no authority on which to sustain further moves at a subsequent term to rectify judicial errors in a judgment. This court, some 40 years ago, said: “There would be no end to litigation of county courts, or any other courts, could they review their own acts from term to term, and correct supposed errors in their past decisions. The matter is be yond their reach.” Peake 12. Redd, (1851), 14 Mo. 83. To justify action by this court, or either division thereof, in any cause, at a later term than that at which the motion for re hearing is overruled, something must be done at that term to retain the jurisdiction to act upon it; otherwise no judicial errors therein can be reviewed after the term lapses. It was expressly so held by the second division of this court, with reference to extending time for bills of exceptions in the circuit court, in State v. Berry, (1890,) 103 Mo. 367, 15 S. W. Rep. 621, following older cases; and the same principle governs the case before us. 'The rule of this court permit ting motions for rehearing to be filed Within 10 days after the decision of a case, it may be conceded, amounts, in effect, to a standing order in each decided cause; but its force ex tends only to one motion for rehearing, and obviously is not intended to sanction an unlimited number of motions to set aside orders as they may be made, after the ruling upon the motion for rehearing. The United States supreme court and other courts of last resort have often ruled that a motion for rehearing on the merits, first made at a term subsequent to final judgment, cannot properly be considered. Hudson v. Guestier, 7 Cranch. 1; Brooks v. Railroad Co., (1880,) 102 1162 TRIAL AND APPELLATE PRACTICE [Chap. 10

U. S. 107; Milam Co. '12. Robertson, 47 Tex. 222; Daniels v. Daniels, 12 Nev. 118. That proposition is firmly settled, and beyond it We find no authority in the rules of court or in any order in this action authorizing the interposition of such a motion as that made herein October 14, 1891, after the close of the term at which the motion for rehearing was overruled. We are hence of opinion that this cause passed beyond the jurisdiction of this court to review, upon its merits, at the end of the April term, 1891; and consequently that the re hearing was erroneously granted thereafter. The order granting it should, we think, be vacated, and the “motion to set aside order overruling motion for rehearing” should be overruled. ' * "6

16 While courts almost invariably adopt the practice ot refusing to entertain an application for a rehearing after the term. they do not al ways consider that there is an absolute jurisdictional prohibition upon doing s0.—Att0rney General v. Joy, (1914) 181 Mich. 266 (application considered after 30 years); Jones Stationery C0. v. Hentig, (1884) 31 Kan. 317.

SECTION 2. DISMISSAL.

SARATOGA GAS & ELECTRIC LIGHT CO. v. TOWN.

Supreme Court of New York, General Term. 1893.

67 Hun, 645.

Argued before MAYHAM, P. J., and HERRICK, J. HERRICK, J. * * * As a general rule, it is a matter of right that a party who has commenced a litigation may discontinue it, unless sub stantial rights of the other parties have accrued, and injus tice will be done to them by a discontinuance. In re Butler, 101 N. Y. 307, 4 N. E. Rep. 518; Wina-ns "0. Wirum-s, 124 N. Y. 140, 26 N. E. Rep. 293. In the case last cited, it was held that an application to discontinue was addressed to the legal, not the arbitrary, discretion of the court. But in that par ticular case it was held that the public must be regarded as a party, and that, in the public interest, a discontinuance Sec. 2] DISPOSITION or CASE UPON Rnvrsw 1163 might be refused. In the case at bar the respondents to the appeal are not only willing, but ask, that the appeal be dis missed, so that we' have all the parties to the record uniting. There is no claim that the rights of any persons not parties to the record will be afi'ected, and it is not an action or pro ceeding like Wirums '0. Winans, supra, where the public can be considered a party. The fact that the attorney for the appellants opposes the dismissal of the appeal, in the ab sence of any claim of fraud or collusion, or lien upon the matter in controversy, is of no consequence. Roberts 'v. Doty, 31 Hun, 128; Root v. Van Duzen, 32 Hun, 63. This is not a case where the attorney is in fact a party in interest," where he has a lien upon the claim, and where there has been a collusive settlement in fraud of his rights; and, in the absence of any such facts, it seems to me that it would be very unseemly for the court to refuse, at the request of an attorney, to grant the desire of all the parties to a contention, that the litigation be settled. The purpose of courts is to settle contentions and controversies, not continue them; and they will aid parties, not embarrass them, in making ami cable adjustments of their differences. The motion to dis miss the appeal is granted. No costs having been asked, none are allowed."

17“The attorney, however, even if he has a lien on the judgment, " * ' is not a party to the suit, nor does he stand in the place of a party in interest. He is in no way responsible for the costs of the proceedings, and to permit him to control them would, in effect, be compelling the client to carry on the litigation at his own expense, simply tor the contingent benefit oi‘. the attorney.”—Platt v. Perome, (1856) 19 How. (U. S.) 384. 18 “Usually the court will not allow it it the party intend at some future time to bring a new appeal, as the allowance under such circum stances would be unjust to the detendant,"—Calcote v. Stanton, (1855) 18 How. (U. S.) 241. A dismissal by appellant does not affect the appeal based upon appellee’s assignment of cross-errors,—San Pedro, etc., RR. Co. v. Board of Education, (1909) 35 Utah, 13. 1164 TRIAL AND APPELLATE PRACTICE [Chap. 10

DORE v. DOUGHERTY.

" Supreme Court of California. 1884.

4 Pacific Reporter, 1067.

MCKEE, J. The respondent moves to dismiss the appeal taken from the order denying a motion for a new trial in this case, principally upon the ground that the transcript shows on its face that the proposed statement on the motion was not served upon one of the “adverse parties,” as re quired by subdivision 3, § 659, Code Civ. Pro. It is conceded that the proposed statement was served on all the parties except one, viz., the defendant Hallidie. Upon him it was not served; but the court, as to the parties upon whom it was served, settled and allowed the same, certified to its correctness, and upon it, as certified, the motion for a new trial was submitted and denied. It may be that the court denied the motion because the proposed statement had not been served upon all the parties. If that were so, or if it were not so, it is not cause for a dismissal of the appeal. An appeal is dismissible for some irregularities in taking it, or for failure to prosecute it, or for want of appearance, or for consent of parties; but where it has been perfected ac cording to law, and the appellant appears, he is entitled to be heard upon any question or fact involved in the merits. Motion denied.1° ,

19 Grounds. "Various defects in the proceedings for review constitute grounds for dismissing an appeal or writ of error on motion, in the absence of a sufficient excuse therefor or a waiver thereof. This rule applies to defects such as failure to obtain an order allowing an appeal; failure of the record to show that an appeal was taken or a writ of error issued; failure of the record to show that an appeal was ever granted or allowed; failure of the record to show an application for an appeal; failure to group and number the exceptions; failure to bring the appeal within the time prescribed; * " " failure to number the pages of the petition in error and of the record before filing same; * * ' failure to prepare the order appealed from in accordance with the stat ute; ' * * failure to give notice of appeal; ' ' * failure to bring up all the parties in interest; " ' ' failure to give an appeal bond or undertaking when required by statute, rule of court, or valid order of court; ‘ ' ' failure to file the transcript as required by law; * " ' failure to specify errors; failure to flle and serve briefs or points and authorities; failure to appear at the call of the ea.se;" etc.-4 C. J. 565, citing a very large number of cases. A motion to dismiss is the proper method of attacking a moot case, Sec. 2] DISPOSITION or CASE U1>oN REVIEW 1165

Cardoza v. Baird, (1907) 30 App. D. C. 86; Mills v. Green, (1895) 159 U. S. 651; or raising the objection of want ot jurisdiction in the appel late court,-—Hecker v. Fowler, (1861) 1 Black (U. S.) 95; Eustis v. Bolles, (1893) 150 U. S. 361. Want of prosecution is also a common ground for dismissa.l,—-Bronson v. Bank, (1910) 83 Conn. 128; 0'Mara v. Wabash RR. 00., (1898) 150 Ind. 648; Perkins v. Perkins, (1913) 173 Mich. 690; Parsons v. Babson, (1906) 129 Wis. 311. "The dismissal is a penalty for not taking the steps required,"—El wood v. Sac County, (1912) 156 Ia. 407. An order of dismissal is often made nisi, e. g., unless a proper bond shall be filed,—Seward v. Corneau, (1880) 103 U. S. 161; King v. Gridley, (1888) 69 Mich. 84.

MINOR v. TILLOTSON.

Supreme Court of the United States. 1848.

1 Howard, 287.

TANEY, C. J. This is a writ of error from the Circuit Court of the United States for_the eastern district of Louis iana. A motion has been made to dismiss the writ, upon the ground that the record contains no bill of exception, nor statement of facts by the court, according to the practice of Louisiana, by which any question of law is brought up for revision in such a form as to enable this court to decide upon it; and that there is a mass of various and conflicting tes timony in relation to facts, upon which no jurisdiction can be exercised upon a writ of error. Assuming this statement to be correct, it does not follow that advantage can be taken of it upon a motion to dismiss. The record shows that a judgment was rendered in the Cir cuit Court, over which this court undoubtedly have jurisdic tion upon a writ of error. The plaintiffs allege that there is error in law in this judgment, and have brought it here for the revision of this court. And upon the argument of the case it will be incumbent upon them to show that the rec ord presents, in some form or other, a statement of facts upon which a question of law arose in the Circuit Court, and which was there erroneously decided. And if he fails to do this, the judgment must be affirmed. But he is entitled to be heard, in order that he may show, if he can, that the error of which he complains appears in the record; and whether 1166 TRIAL AND APPELLATE PRACTICE [Chap. 10

it does so appear or not, is a matter which cannot be in quired into in the form in which the case is now brought l before us. The motion must thereforeiii.-iibe dismissed. JOHN P. SHARKEY CO. v. CITY OF PORTLAND.

Supreme Court of Oregon. 1910.

58 Oregon, 85.9.

MOORE. C. J. This is a motion to dismiss an appeal as to some of the parties. The defendants, the city of Portland, a municipal corporation, W. Scott and T. McDougal, partners as Scott & McDougal, and M. J. Connelley, having been per petually enjoined from trespassing on the plaintiff’s land and required to pay him damages arising from the injury thereto, jointly appealed from the entire decree. The city of Portland alone filed a brief, and because its codefendants did not join therein or file a separate brief this motion was in ' terposed. As the entire decree is attempted to be reviewed by all the defendants, the appeal cannot be dismissed as to any of them, for a reversal, affirmance, or modification of the determination of the trial court will necessarily affect all of them alike. If the failure of the counsel for the codefend ants to file a brief is so flagrant that the omission should subject their clients to discipline, the most severe punishment that could be legally inflicted upon them would be to deny them the right to file a brief herein, and to refuse them the privilege of appearing in person or by counsel at the trial of the cause in this court. '¥ 1 # # I # i I i U Sec. 2] DISPOSITION or Cxss Uron REVIEW 1167

MOORE v. MCCOLLUM.

Supreme Court of Nebraska. 1895.

48 Nebraska, 617.

NORVAL, C. J. At the present term a motion was sub mitted by the defendants in error to dismiss the petition in error for want of prosecution. This cause was submitted for decision upon its merits at the September term, 1893, without briefs or oral argument. The motion to dismiss, therefore, comes too late. Such a motion, to be of any avail, must be presented before the final submission of the cause upon the merits. No brief having been filed by either party, and the judgment conforming to the pleadings and evidence, * "‘ it is accordingly aflirmed. *”°

80 In general motions to dismiss must be made promptly or they will be deemed to be too late. See many cases cited in 4 C. J. 594-7.

DAVIDSON v. LANIER.

Supreme Court of the United States. 1861.

131 U. S. lxxii.

Motion to dismiss. The case is stated in the opinion. TANEY, C. J. A motion has been made in each of these cases to dismiss it for want of jurisdiction, on account of certain defects, as it is alleged, in the process and proceed ings made necessary by the act of Congress, in order to bring ' it before this court. It is the practice of this court to receive and hear motions of this kind on the day assigned for business of that descrip tion, before the case is reached in the regular call of the docket. And the rule has been adopted, because it would be unjust to the parties to delay the decision until the case is called for trial, if the court are satisfied that they have not jurisdiction, and that the case must be ultimately dismissed without deciding any of the matters in controversy between the parties. 1168 TRIAL AND APPELLATE PRACTICE [Chap. 10

But in order to prevent surprise upon the plaintiff in error, or appellant, the court have always, where the motion is made in advance of the regular call, directed notice to be given to him or his counsel, and required proof that it was served long enough before the motion is heard to give him an opportunity of contesting the motion if he desires to do so. And the time required must depend upon the distance of the counsel or the party from the place of holding the court, and must be sufiicient not only to enable him to make the journey, but to arrange business in which he may be engaged when he receives the notice. For, when a case stands so late on the docket of this court as to give no rea sonable hope of reaching it during the term, it cannot be expected that distant counsel will leave their usual place of business, and attend here to guard against the possibility of a motion to dismiss. The motions in these two cases were made about three weeks before the close of the term, but as soon as it could be convieniently made after they were docketed, and the court directed the usual notice to be given. We are satisfied that the counsel for the defendant in error has used every means in his power to comply with the order. But he has no proof that it was actually served. The counsel and client both reside in Mississippi, and the case stands so late on the docket that a trial could not be expected at this term. Nor could they anticipate that there would be any reason for their attendance. Under these circumstances the court order that the motion be continued, to be heard on the first Friday in next term, provided notice of the motions and the day of hearing be served on the party or his counsel, thirty days before the commencement of the next term. So ordered.“

21 The notice should specify the grounds upon which the motion 15 ma.de,——Bell v. So. Pac. Ry. Co., (1902) 137 Cal. 77; and the time of hearing,—Glenny v. Langdon, (1876) 94 U. S. 604. The length of time of notice is frequently fixed by statute or rule of colirt,—R0gers v. Trumbull, (1903) 31 Wash. 656; Commonwealth Ins. C0. v. Pierro, (1861) waived,——Smlth 6 Minn. 569. Want of notice may be v. Hawley, (1899) 11 S. D. 399; Haggin v. Montague, (1907) 125 Ky. 507.

—-- = ' ~ Sec. 2] DISPOSITION or CASE Uron Rsvmw 1160

DAKOTA COUNTY v. GLIDDEN.

Supreme Court of the United States. 1885.

113 United States, 222.

MILLER, J. This case comes before us on a motion to dis miss the writ of error. The ground of this motion is that since the judgment was rendered, which plaintiff in error now seeks to reverse, the matter in controversy has been the sub ject of compromise between the parties to the litigation, which is in full force and binding on plaintiff and defendant, and which leaves nothing of the controversy presented by the record to be decided. The evidence of this compromise is not found in the record of the case in the circuit court, nor in any proceedings in that court, and it is argued against the motion to dismiss that it cannot, for that reason, be con sidered in this court. It consists of duly certified transcripts of proceedings of the board of commissioners of Dakota county, who are the authorized representatives of that county in all its financial matters, of receipts of the parties or their attorneys, and of affidavits of persons engaged in the trans action. These are undisputed on the other side, either by contradictory testimony or by the brief of counsel who ap pear to oppose this motion. They leave no doubt of the fact, if it is competent for this court to consider them, that shortly after the judgment against the county in favor of Glidden was rendered, the parties entered into negotiations to settle the controversy, which, after due deliberation and several formal meetings of the board of commissioners, resulted in such settlement. The judgment in the case was rendered on certain coupons for interest due on bonds issued by said county to aid in constructing railroads. These bonds bore interest at the rate of 10 per cent. per annum, and became due in the year 1896. By the new agreement the county took up the bonds and the coupons on which judgment was rendered, and issued new bonds bearing 6 per cent. interest, the principal payable in the year 1902. These new bonds were delivered to plaintiff and accepted by him in satisfac tion of his judgment and of his old bonds, and these latter were delivered by him to the county authorities and destroyed by burning. 1170 TRIAL AND APPELLATE PRACTICE [Chap. 10

There can be no question that a debtor against whom a judgment for money is recovered, may pay that judgment. and bring a writ of error to reverse it, and if reversed can recover back his money. And a defendant in an action of ejectment may bring a writ of error, and, failing to give a supersedeas bond, may submit to the judgment by giving pos session of the land, which he can recover, if he reverses the judgment, by means of a writ of restitution. In both these cases the defendant has merely submitted to perform the judgment of the court, and has not thereby lost his right to seek a reversal of that judgment by writ of error or appeal. And so, if, in the present case, the county had paid the judgment in money, or had levied a tax to raise the money, or had in any other way satisfied that judgment without changing the rights of the parties in any other respect, its right to prosecute this writ of error would have remained unaffected. But what was done was a very different thing from that. A new agreement, on sufficient consideration, was made, by which the judgment itself, the coupons on which it was recovered, and the bonds of which these coupons were a part, were all surrendered and destroyed, and other bonds and other coupons were accepted in their place, pay able at a more distant date and with a lower rate of interest, with the effect of extinguishing the judgment now sought to be reversed, so that the plaintiff in that judgment could not issue execution on it, though there is no supersedeas bond to secure its payment. It is a valid compromise and settle ment of a much larger claim, but it includes this judgment necessarily. It extinguishes the cause of action.in this case. If valid, it is a bar to any prosecution of the suit in the cir cuit court, though we should reverse this judgment on the record as it stands for errors which may be found in it. To examine these errors and reverse the judgment is a fruitless proceeding, because when the plaintifl’ has secured his ob ject the relation of the parties is unchanged, and must stand or fall on the terms of the compromise. It is said that to recognize this compromise and grant this motion is to assume original instead of appellate jurisdic tion. But this court is compelled, as all courts are, to receive evidence dehors the record affecting their proceeding in a case before them on error or appeal. The death of one of the parties after a writ of error or appeal requires a new Sec. 2] DISPOSITION or CASE UPON REVIEW 1171

proceeding to supply his place. The transfer of the interest of one of the parties by assignment or by a judicial proceed ing in another court, as in bankruptcy or otherwise, is brought to the attention of the court by evidence outside of the original record, and acted on. A release of errors may be filed as a bar to the writ. A settlement of the controversy, with an agreement to dismiss the appeal or writ of error, or any stipulation as to proceedings in this court, signed by the parties, will be enforced, as an agreement to submit the case on printed argument alone, within the time allowed by the rule of this court. This court has dismissed several suits on grounds much more liable to the objection raised than the present case, as in the case of Cleveland v. Chamberlain, 1 Black, 419, where the planitiff in error, having bought out the defendant’s in terest in the matter in controversy, and having control of both sides of the litigation in the suit, still sought for other purposes to have the case decided by this court. On evi dence of this by affidavits the court dismissed the writ. Simi lar cases in regard to suits establishing patent rights or hold ing them void by the inferior courts, as in Lord v. Veazie, 8 How. 254; Wood Paper C0. v. Heft, 8 Wall. 336, have been dismissed, because the parties to the suit having settled the matter, so that there is no longer a real controversy, one or both of them was seeking a judgment of this court for im proper purposes, in regard to a question which exists no longer between these parties. It is by reason of the necessity of the case that the evi dence by which such matters are brought to the attention of the court must be that, not found in the transcript of the orig inal case, because it occurred since that record was made up. To refuse to receive appropriate evidence of such facts for that reason is to deliver up the court as a blind instrument for the perpetration of fraud, and make its proceedings by such refusal the means of inflicting gross injustice. The cases and precedents we have mentioned are sufficient to show that the proposition of plaintiff in error is untenable. In the case of Board» of Liquidation 1;. Louisville & N. R. Co., 109 U. S. 223, S. C. 3 Sup. Ct. Rep. 144, a question arose on the presentation of an order made by the authorities of the city of New Orleans to dismiss a suit in this court in which that city was plaintiff in error. The order was based 1172 TRIAL AND APPELLATE PaAcTIcE [Chap. 10 on a compromise between those authorities and the railroad company, which the board of liquidation, intervening here, alleged to be without authority, and fraudulent. The court here did not disregard the compromise or the order of the city to dismiss the case ; but, considering that the question of authority in the mayor and council of the city to make the compromise, and of the alleged fraud in making it, re quired the power of a court of original jurisdiction to in vestigate and decide thereon, continued the case in this court until that was done in the proper court. But when this was ascertained in favor of the action of the mayor and council, the suit was dismissed here on the basis of that compromise order." In the case before us we see no reason to impeach the trans action by which the new bonds were substituted for the old, and for the judgment we are asked to reverse; and the writ of error is accordingly dismissed.

I13 If the motion is based upon facts which should be but are not shown on the record presented above, the appellate court may direct the lower court to certify up any additional facts relevant to the point raised which may appear on the record below.—Keliy & Jones Co. V. Moore, (1906) 125 Ga. 382. L-iii

TRUMBULL v. JEFFERSON COUNTY.

Supreme Court of Washington. 1910.

60 Washington, 47.9.

CROW, J . This action was commenced by Thomas F. Trumbull and Lida P. Trumbull, his wife, against Jefferson county and Harry Hart, its treasurer, to vacate a tax fore closure judgment and set aside a tax deed affecting real estate to which the plaintiffs claim title. From a decree in their favor, the defendants have appealed. The present hearing is upon respondents’ motion to dis miss the appeal. They contend that, since the commencement of the action and prior to judgment, the county conveyed its interest in the real estate to one P. M. Coyne; that the ap pellants are not aggrieved by the final judgment and cannot

_.-Q4-1-= Sec. 2] DISPOSITION or CASE Urou Rnvinw 1173

prosecute this appeal. In support of their motion they have filed affidavits and certified copies of records showing that, when this action was commenced, they filed a notice of lis pendens with the auditor of Jefferson county, and that on the next day the appellant Harry Hart, as treasurer Jef _of ferson county, sold to P. M. Coyne all the right, title and interest of the county in and to the real estate. The tran script shows that the action was commenced on April 10, 1908. No suggestion of the sale to Coyne appears in any of the pleadings, although the issues were not completed until

March 9, 1910, the date of the trial. From the statement of

facts it appears that the cause was tried on the issues raised between the respondents and appellants; that no mention of the transfer to P. M. Coyne was made during the trial, and

that no motion was made to substitute him as a defendant. Respondents’ contention is that, "by reason of the transfer, the county has no further interest in the subject-matter of the _action, and that the controversy has ceased. In support

of their contention they cite a number of cases from this

court, in which it appeared that some action such as a satis faction of the judgment had occurred, which determined the controversy. Here nothing changing the situation of the parties has occurred since judgment. The deed upon which respondents now predicate their motion to dismiss was exe cuted and recorded almost two years before the trial. Not a suggestion of the transfer was made prior to trial, judgment, or appeal. The statement of facts has attached thereto the certificate of the trial judge, under date of June 13, 1910,

that it contains all material facts, matters, and proceedings

theretofore occurring in the cause and not already a part of the record. The appellants now support their motion by a showing that the transfer was made prior to the framing of the issues, after the commencement of the action, and long prior to trial or judgment. Matters outside of the record occurring after judgment, which affect the right of an appel lant to prosecute his appeal, may be shown to and considered

by the appellate court, on a motion to dismiss. But no such showing should be permitted as to matters occurring prior to judgment. They should be incorporated in the record by proper procedure at the instance of the litigant who‘ intends to rely upon them. In Merriam v. Victory Mining Company, 37 Or., at page 329, 56 Pac., at page 75, 58 Pac., at page 37, 1174 TRIAL AND APPELLATE PRACTICE [Chap. 10

60 Pac., at page 998, discussing this rule of practice the court well said: “It is quite well settled that evidence of facts outside of the record, occurring after the rendition of the judgment in the court below, and which affect the pro ceedings of the appellate court, when deemed necessary, will be received and considered by such court for the purpose of determining its action. Ehrman v. Astoria Ry. Co., 26 Or. 377, 38 Pac. 306; Dakota County v. Glidden, 113 U. S. 222 [5 Sup. Ct. 428] 28 L. Ed. 981; Elwell v. Fosdiclc, 134 U. S. 500 [10 Sup. Ct. 598] 33 L. Ed. 998. But the record of the court below, upon which the appeal is based, cannot be con tradicted or varied by an ea: parte showing in the appellate court.” After the county transferred its interest to Coyne, he either could.have been substituted as a party defendant on his motion, or he could have consented to a continuation of the action in the name of his grantors for his benefit. The final judgment would adjudicate his rights. Under the doc trine of lis pendens, if he so elected, he should be permitted to obtain in the names of his grantors, by appeal if neces sary, any benefit resulting from the litigation. Had the county obtained judgment, the present respondents could have prosecuted an appeal, and they cannot now insist that rights of the appellants’ vendee cannot be protected by an appeal prosecuted by his grantors for his benefit. =l= III 1! 4' Ii i i ii U $ The motion is denied.”

88 Thus, it cannot be shown by evidence dehors the record that the judgment was really entered by consent,—Woodbury v. Nevada, etc., RR. Co., (1898) 120 Cal. 367; Fox v. City of Hinton, (1912) 70 W. Va. 6542 or’, that the appellant tendered a deposit with the trial justice in lieu of a recognizance on appeal which the justice refused to receive.—Tibbetts v. Handy, (1888) 145 Mass. 537; or, that no assignment of errors was presented to the trial judge with the bill of exceptions,—Thomas Bros. v. Price, (1908) 56 Fla. 694.

I _i Sec. 2] DISPOSITION or CASE UPON Rsvmw 1175

DUNTERMANN v. STOREY.

Supreme Court of Nebraska. 1894.

40 Nebraska, 1,./,7.

RAGAN, C. On the 25th day of November, 1889, Joseph Storey recovered a judgment in the district court of Adams county, Neb., against John H. Duntermann. On the 9th day of January, 1890, Duntermann as principal, and Jacob Bern hart as surety, executed and filed in the office of the clerk of the district court a supersedeas bond. * * * The bond was approved by the clerk of the district court on the day of its execution. This suit was brought by Storey against Duntermann and Bernhart on said bond. Storey, in his petition, alleged the recovery of the judgment against Duntermann; the execution, delivery, and approval of the aforesaid supersedeas bond by Duntermann and Bernhart; its filing with, and approval by, the clerk of the district court of Adams county. The petition further alleged that more than a year had elapsed since the making of the last final order and judgment in the case of Storey against Dunt ermann in the district court of Adams county; that no bill of exceptions had ever been settled in said case, “and that no proceedings in error or appeal are now pending in the supreme court of Nebraska from the said judgment, whereby the same has been wholly affirmed, unreversed, and unmodi * * * "‘ * fied. * The district court rendered a judgment for Storey for the amount of his judgment against Duntermann, with interest and costs, and Bernhart brings the case here on error. It 1 Ill 1|! * ¥ # 1 $ 1 The bond which Bernhart signed provided that he would pay the condemnation money and costs in case said judgment should be affirmed in whole or in part. So then we have the question as to .whether the failure of Duntermann to insti tute, or attempt to institute, in this court, any proceeding

for a reversal of the judgment for more than one year after its rendition, amounted to an affirmance of it. We are cited by the counsel for the plaintiff in error to Drummond v. Hus son, 14 N. Y. 60, to sustain the contention of counsel that such failure on the part of Duntermann did not affirm the 1176 TRIAL AND APPELLATE PRACTICE [Chap. 10

judgment. In that case the bond signed by the surety was in the following language: “Now we, the subscribers, here by undertake that if the judgment appealed from, or any part thereof, be affirmed, the appellant will pay the,” etc. This bond was said by Selden, J., who delivered the opinion of the court, to be in the precise language of section 335 of the New York Code. It appears from the opinion that the appeal was filed and docketed in the court of appeals, and was dismissed for want of prosecution. In the suit on the bond the dismissal of the appeal from the appellate court was made the sole ground of defense, and the court of appeals sustained the defense made, holding that: “A dismissal of an appeal for want of prosecution is clearly not an afiirmance of the judgment. This court has decided nothing whatever in respect to the validity of the judgment.” This case from New York is in point, but We are constrained to say that we do not think it sound. The opinion of the court proceeds on the theory that, in order to the afiirmance of a judgment ap pealed from, the appellate court must hear or examine the case appealed, deliberate thereon, and reach the same con clusion that the court below reached, and render a formal judgment of affirmance. This case, so far as we have been able to ascertain from a somewhat extended examination of the reported decisions, stands alone, and is certaintly not in line with the weight of authority. The general rule is that the dismissal of an appeal from an appellate court without an examination of the case upon its merits operates as an affirmance of the judgment appealed, or attempted to be appealed from. In McConnell 'v. Swailes, 2 Scam. 571, the supreme court of Illinois said: “The dismissal of an appeal is equivalent to a regular technical afiirmanceof the judg ment of the court below, so as to entitle the party to claim a forfeiture of the bond, and have his action therefor.” In Sutherland v. Phelps, 22 Ill. 92, it was said: “The dismissal of an appeal is equivalent to an afiirmance of the judgment.” In Clark 12. Milles, 2 Pin. 432, the supreme court of Wiscon~ sin said: “Where an appeal is dismissed, the party who brought it, with his sureties in recognizance, will be imme diately liable thereon for the amount of the judgment ren dered by the justice.” In Ell-is '0. Hull, 23 Cal. 161, it was held: “Where an appeal is taken to the supreme court from a judgment, by filing notice of appeal and undertaking, and I Sec. 2] DISPOSITION or Cxsn U1>oN REVIEW 1177 the appeal is afterwards dismissed by the supreme court for failure of the appellant to send up the transcript, the sureties are liable on the undertaking on appeal.” To the same effect are Healey v. Newton (Mich.) 55 N. W. 666; Shannon v. Dodge (Colo. Sup.) 32 Pac. 61; Pratt 12. Gilbert (Utah) 29 Pac. 965. It is true that the contract of a surety is to be construed strictly in his favor, but such a construction as the one con tended for in this case would be too technical. Bernhart promised that, if the judgment rendered against Duntermann should be affirmed in whole or in part, he would pay it. This was, in effect, a promise on his part to pay the Storey judg ment unless the supreme court should reverse it. Bernhart cannot allege as a defense the failure of his principal to suc cessfully and properly prosecute his petition in error. Pierce v. Banta (Ind. App.) 31 N. E. 812. 5. By the execution and filing of the eupersedeas bond, Bernhart took one step in the proceedings to have reviewed on error the Storey judgment. He then abandoned all fur ther attempts to reverse the judgment, thus leaving it in full force. The judgment, then, is in the same plight that it would have been in had Bernhart filed his transcript of the record of said judgment and bill of exceptions in this court, and then had neglected to have a summons in error issued within one year from the date of the judgment, and this court had dismissed such error proceeding. We have already seen that, had this court dismissed the error proceedings by rea son of the failure of Bernhart to comply with some require ment necessary to a review of the judgment on error, the dismissal of the proceedings would in effect be an affirmance of the judgment rendered. Is not the effect on the judgment just the same whether proceedings in error be instituted, and then dismissed without an examination of the case upon its merits, or whether the judgment debtor, after taking one or more steps looking towards reviewing the judgment on error, abandons the proceedings? A judgment debtor, by filing a supersedeas bond with the clerk of the district court and a petition in error in this court, stays the execution of the judg ment at least for one year from the date of its rendition, as the filing in this court of the petition in error does not invest this court with jurisdiction over the person of the judgment creditor. For this purpose it is necessary that a summons 1178 TRIAL AND APPELLATE PRACTICE [Chap. 10

in error shall be issued within a year from the date of its rendition, although it may be served afterwards. Now, if the contention of counsel for the plaintiff in error be correct, a judgment debtor, by filing a supersedeas bond with the clerk of the court and a petition in error here, may stay the execution of the judgment for a year, and then, by voluntar ily abandoning the proceedings in error, or by failing to have a summons in error issued, may thus deprive the judgment creditor of the power of collecting his judgment for the length of time intervening between its rendition and the dis missal of the error proceedings, and at the end of that time leave the judgment creditor with no more security for the collection of his judgment than he had on the date of its rendition. Such a construction of the statute would deprive the judgment creditor of the very rights given him by the statute; it would be, in effect, a judicial enactment of a stay law without bond. l F i i 8 8 l 1 i Q The judgment of the district court is aflirmed. ' Aflirmed.“

24 But where the dismissal is made “without prejudice," to the right ot the appellant to take another appeal, it does not operate as an atfirm ance.—Garibaldi v. Garr, (1893) 97 Cal. 253; Long v. Sullivan, (1895) 21 Colo. 109. So, too, ii the dismissal is tor want of jurisdiction in the appellate court, it is not the equivalent of an aflirmance, for "it would be a non~ sequitur to say a court may afiirm a decree when it has no jurisdiction to hear the case for any purpose,"—Blair v. Reading, (1882) 103 Ill. 375. "The effect ot the dismissal is to leave the judgment appealed from in full force and effect in the court in which it was rendered. In other words the status is the same as it no appeal had been prosecuted." Calhoune v. Kidd, (1912) 150 Ky. 609. To same efl'ect,—Johnson v. Ford, (1893) 92 G-a. 751. am

HOWELL v. VAN NESS.

The Supreme Court of New Jersey. 1866.

31 New Jersey Law, 445’.

Certiorari to set aside an order of the Court of Common Pleas of the county of Warren, dismissing an appeal. HAINES, J . From a judgment recovered in a court for the Sec. 2] DISPOSITION or CASE UPON Rsvmw 1179

trial of small causes by Howell, Van Ness, the defendant, appealed to the Court of Common Pleas of Warren. When the appeal was regularly called for hearing, according to the course of practice of the court, the appellant failed to appear and move his appeal, and it was dismissed for want of prose cution; and leave was granted to‘ the appellee to take the appeal bond from the files, and it was accordingly taken and an action upon it commenced. At a subsequent term, on the allegation of surprise upon the appellant and merits in his defense, the court granted a rule to show cause why the appeal should not be reinstated, and also a rule to take affidavits. On hearing the rule to show cause, the only evidence of surprise was, that the ap pellant was ignorant of the time of hearing appeals, and had neglected to inform himself on the subject. In the attempt to show merits, the testimony disclosed an entire want of merits; that the promissory note on which the action was brought was made by the appellant; that he had promised to pay and pretended to pay it, by giving a check upon a bank in which he knew he had no funds. The Court of Common Pleas, not upon the ground of sur prise and merits, but upon some error, real or supposed of the justice, ordered the appeal to be reinstated. To set aside that order the writ of certiorari was taken. Of the power and duty of the Court of Common Pleas to dismiss an appeal for want of prosecution, there can be no question. One of the terms upon which the appeal is granted is, that the appellant shall enter into bond to appear and prosecute it. The operation of the judgment is suspended, until a new judgment is given or the appeal dismissed. On failure to prosecute the appeal, the only proper relief to be afforded to the appellee is to dismiss it. Read 'v. Rocap, 4 Halst. 347; Lum 11. Price, 1 Halst. 195. The power to reinstate an appeal is equally clear. But it must be for some good cause shown. If it were dismissed on a misapprehension of the law, as in Case v. Rowland, 2 Harr. 76; or on a mistake of the facts, as in Adams 12. Mathis, 3 Harr. 310, it is the duty of the court to reinstate; and if it refuse, a mandamus will issue from this court commanding it to be done. So where the appellant has a meritorious defense, which by some surprise, he has been prevented from showing, the 1180 TRIAL AND APPELLATE PRAcTIcE [Chap. 10 only redress is by reinstating the appeal to afford him the opportunitf. r But when an appeal has been properly dismissed, and there is no error in law or mistake in fact and no surprise, the power of the Common Pleas over it is gone. Their jurisdic tion is then exhausted, and they cannot legally reinstate the appeal. Their decision in such case is as final as if they had rendered judgment upon the merits, and they have no power to reinstate or to grant a new trial. It is suggested that the order to reinstate an appeal is the exercise of a discretion, and not assignable for error; that it is like the granting of a new trial in a common law court, which no writ of error will correct. But it is not a matter of discretion. If the appeal had been improperly dismissed the court was bound to reinstate it; and on refusal so to do would, by a writ of mandamus, be required to do it. The ofiice of the writ of mandamus is to require to be done some manifest duty, not the exercise of a mere discretion. It never commands the granting of a new trial, nor the hear ing or continuance of the trial of a cause, nor the allowance of an amendment of a pleading. These and other incidental orders in the progress of a cause, are so peculiarly subjects for the exercise of the discretion of the court as not to be assignable for error or affected by a Writ of mandamus. But the reinstating of an appeal is the subject of mandamus. When proper to be done, it is a matter of duty and not of discretion; and a mistake in the discharge of the duty may be assigned for error. - In this case there was clearly an error in the Court of Common Pleas. The appeal was lawfully dismissed, and there was no legal ground on which it could be reinstated. Let the rule to reinstate the appeal be set aside and for nothing holden."

25 Where an appeal has been dismissed through mistake, surprise, etc., it is frequently reinstated by order of the appellate court, sometimes under statutes. sometimes on common law principles,—Egan v. Ohio, em, an. 00., (1894) 138 Ind. 274; Collat v. Ives, (1905) 141 Mich. 500; Baldwin v. Rogers, (1881) 28 Minn. 68; State v. Foster, (1882) 44 N, J, L. 378; Main v. McLaughlin, (1891) 78 Wis. 449 (after term by statute); but it is often held that such reinstatement cannot take place after the term at which the dismissal occurs,—Bleyer v. Distillery Co., (1883) 70 724; Rezek, Ga. Pisa v. (1903) 206 Ill. 344; Jackson v. Ashton, (1836) 10 Pet. (U. S.) 480. In The Palmyra, (1827) 12 Wheat. (U. S.) 1, reinstatement at a sub \

Sec. 3] DISPOSITION or Cxss UPON Rsvmw 1181 sequent term where the dismissal was on account of the misprision oi’ the clerk of the court, was held to be within the necessarily implied powers of the court. ~1-1—

SECTION 3. DECISION ON THE MERITS.

(a) On Stipulation.

MANTLE v. LARGEY.

Supreme Court of Montana. 1903.

28 Montana, 38.

BRANTLY, C. J. This action was brought for the purpose of obtaining a decree in favor of plaintiff declaring the de fendant, Patrick A. Largey, a trustee for plaintiff of a one-sixteenth interest in the Speculator quartz lode mining claim, situate in Silver Bow county, and requiring the defend ant to execute to the plaintiff a deed for that interest, and to render an accounting for a one-sixteenth interest in the ores extracted from the property by the defendant. After the in stitution of the suit the defendant died, and Lulu F. Largey was substituted in his place, as his administratrix. The judg ment in the court below was for defendant. Subsequently, on motion of the plaintiff, the court entered an order granting plaintiff a new trial. Thereupon defendant appealed. The parties to the action have filed in this court a stipula tion wherein it is set forth that they have settled their differ ences and controversies by a compromise of all matters in volved; that they desire the order from which the appeal is taken reversed, so that the judgment of the district court may stand as rendered; that remittitur be issued at once; and that this disposition of the appeal is desired because it is in ac cordance with the terms of the compromise and settlement made by the parties. This court is asked to make the order according to the terms of the stipulation. When the stipula tion was filed, and counsel moved for the order, we enter tained doubt as to whether this court could, with propriety, reverse the action of the district court upon an agreement of the parties, without an examination of the record, and a de 1182 TRIAL AND APPELLATE PRACTICE [Chap. 10 termination that the action of that court was in fact errone ous. Upon consideration, however, we deem it the duty of the court, so far as it may, when there is no question as to its jurisdiction in the particular case, to assist parties to settle their controversies by removing any obstruction which may stand in the way of such settlement. This cause involves title to valuable mining property, and, as the settlement between the parties contemplates the existence of a valid and subsist ing judgment in favor of defendant, we think that the order desired may be made with propriety, though it is not apparent that the plaintiff would not, upon examination of the record, be found entitled to an afiirmance of the order. It is there fore adjudged that the action of the district court in the premises be reversed, and that the cause be remanded, with directions to that court to vacate the order granting a new trial, and that it permit the judgment in favor of defendant in stand as rendered. Reversed and remanded. HOLLOWAY, J ., concurs. MILBURN, J ., dissents. . L~ (b) By a Divided Court.

CHARLOTTESVILLE & ALBEMARLE RAILWAY CO. v. RUBIN.

Supreme Court of Appeals of Virginia. 1908.

107 Virginia, 751.

PER CURIAM. The petition to rehear in this case proceeds upon the mistaken theory that the order of afiirmance is void, inasmuch as the present statute (Va. Code 1904, § 3485) makes no express provision, as did the former statute, for judgments by divided court. The contention is founded upon the misconception that the origin of that procedure is statutory. On the contrary, the statute was merely declaratory of a well-settled pre-existing rule of necessity. “Where the court is equally divided, so far as the point of division goes the judgment or decree of the court below is Sec. 3] DISPOSITION or CASE UPON Rsviaw 1183 afiirmed. The Antelope, 10 Wheat. (U. S.) 66, 6 L. Ed. 268; Washington Bridge Co. v. Stewart, 3 How. (U. S.) 413, 11 L. Ed. 658; Durant v. Essex Co., 7 Wall. (U. S.) 112, 19 L. Ed. 154. Although, where the court is equally divided in opinion upon a writ of error, the judgment of the court below is affirmed, no principle is settled thereby. Etting '0. Bank of U. S., 11 Wheat. (U. S.) 59, 6 L. Ed.'419. On a point upon which the judges are equally divided the Supreme Court will pronounce no opinion. Benton v. Woolsey, 12 Pet. (U. S.) 27, 9 L. Ed. 987. Where the court is equally divided, it cannot change the decree of the circuit court, or exercise the discre tionary power to allow interest, for this would be a new de cree. Hemmenway '12. Fisher, 20 How. (U. S.) 255, 15 L. Ed. 799. A writ of error was dismissed by the Supreme Court on a division of opinion as to jurisdiction, where a fugitive mur derer indicted in Canada was arrested in Vermont under war rant from the Governor upon demand for his surrender, and the state court refused to release him on habeas corpus. Holmes 'v. Jennison, 14 Pet. (U. S.) 540, 10 L. Ed. 579. When the court is equally divided, the judgment will be affirmed, with costs. Bauer u. Texas & P. R. Co., 131 U. S. 430, 9 Sup. Ct. 795, 33 L. Ed. 209; Moflit 12. Miller, 34 L. Ed. 539. Equal division of the court on motion for rehearing of a judgment of reversal previously rendered, leaves that judgment in force, and does not result in affirming the judgment of the lower court. Carmichael v. Eberle, 177 U. S. 63, 20 Sup. Ct. 571, 44 L. Ed. 672.” Taylor on Jur. & Proc. of U. S. Sup. Ct. § 441. The other grounds assigned for a rehearing involve ques tions already considered, and upon which the court was di vided. For these reasons, the prayer of the petition is denied."

86 Where by constitutional provision the concurrence of a majority of the members of the court is necessary for a decision, as in Florida and California, the court will as a matter of policy, in case of equal division, unite for afllrmanoe.-State ex rel. v. McClung, (1904) 47 Fla. 224; Santa Rosa RR. Co. v. Central St. Ry. Co., (1869) 112 Cal. 436. Some interesting judicial discussions have arisen over the question as to the result upon the judgment below of a division of opinion such that a majority of the court fail to agree upon any one ground of error although a majority agree that the case should be reversed. See Will of iVI<~.Naught0n, (1909) 138 Wis. 179, citing and discussing prior cases in various courts. Where a. majority are for allirinance but on different grounds the case should be affirmed because a ease is always to be ai 1184 TRIAL AND APPELLATE PRACTICE [Chap. 10

.firmed unless there is a majority for reversal. Foltz v. Merrill, (1873) 11 Kan. 479.

(c) Prejudicial and Harmless Error.

JONES v. STATE.

Supreme Court of Mississippi. 1918.

104 Mississippi, 871.

SMITH, C. J. Appellant, having been convicted of selling intoxicating liquors, appealed to this court, and his conviction was affirmed at a former day of this term. His counsel now suggests that we erred in so doing, for the reason that the court below committed manifest error in permitting the in troduction of certain testimony offered by the state. Appellant was convicted on the testimony of two detectives employed by the sheriff for the purpose of ferreting out the commission of crimes of this character. They testified that they went to the house of appellant, and were met at the door by his wife, Carrie, and told her they wished to purchase some whisky; that she returned into the house, and shortly after wards appellant himself appeared with two half pints of whisky, for which they paid him the sum of $1.25. A Mr. Davis was then introduced by the state, and after he had testified that he had requested these detectives to go to this house, he was permitted, over the objection of appellant, to answer the following questions: “Q. For what purpose did you send them there? A. I sent them up there to catch Carrie. Q. For what purpose; to catch Carrie doing what? A. To get a sale of whisky or beer on her.” The “Carrie” re ferred to is appellant’s wife. Appellant denied having made this sale, he and one other witness testifying that he was at a place other than his residence at the time these detectives claimed to have purchased the whisky. Conceding, but not deciding, that this testimony was incompetent, and ought not to have been admitted, its admission can by no stretch of the imagination be said to have resulted in a miscarriage of jus tice. Counsel for appellant very vigorously attacks the principle Sec. 3] DISPOSITION or CASE UPON REVIEW 1185 of harmless error here applied and embodied in rule No. 11 of this court (59 South. ix), "' * "‘ the rule criticised comes to us from the common law, and in slightly different language is now enforced in many jurisdictions by virtue of statutes, rules of court, or judicial decision, including the courts of that country from which our jurisprudence is derived, and in ad dition has been approved by various Bar Associations, includ ing the American and our own State Bar Association. The rule referred to is as follows: “No judgment shall be re versed on the ground of misdirection to the jury, or the im proper admission or exclusion of evidence, or for error as to the matter of pleading or procedure, unless it shall affirma tively appear, from the whole record, that such judgment has resulted in a miscarriage of justice.” Counsel does not advise us what, in his judgment, the rule in this matter ought to be; but we presume that he approves that rule which Mr. Wigmore terms the “Exchequer heresy,” for the reason that it was first announced in the English Court of Exchequer, and which is “that an error of ruling creates per se for the excepting and defeated party a right to a new trial"; for part of the language quoted from this ad dress by him with approval is as follows: “The true rule must be that a miscarriage of justice has already resulted when the case has not been tried according to law, and the only business of the Supreme Court of Mississippi has here tofore been and ought to be to see that this error is corrected. Any other rule will bring chaos and confusion worse con founded.” Prior to the decision of the case of Crease v. Barrett, in 1835. by the Court of Exchequer, reported in 1 C. & M. 918, the orthodox common-law rule on this subject was that an erroneous ruling of the character here under consideration “was not sufficient ground for setting aside a verdict and ordering a new trial, unless upon all the evidence it appeared to the judges that the truth had thereby not been reached.” 1 VVigmore on Evidence, § 21, and authorities there cited, par ticularly Tyrwhit v. Wynn, 2 Bar. & Ald. 637. In Crease '0. Barrett the Court of Exchequer “announced a rule which in spirit and in later interpretation signified that error of ruling created per se for the excepting and defeated party a right to a new trial. The new Exchequer rule was speedily accepted in the other courts; and for something more than a generation 1186 Tam. AND APPELLATE Prmcncn [Chap. 10 it remained the law of England, until it was reformed away, for civil causes, in 1875.” I Wigmore on Evidence, § 21. This heresy also early obtained recognition in America, and is probably still the rule in a majority of the states. The many miscarriages of justice, of which its enforcement was undoubtedly the cause, have at last brought it into disfavor. and it has now been repudiated in many jurisdictions, the courts of which have returned to the orthodox English rule, either voluntarily or by legislative command. i i i #4 # i ll i i F Unfortunately, however, this Exchequer heresy soon ob tained a foothold here, and in 1855, in Jcwkson v. Jackson, 28 Miss. 674, 64 Am. Dec. 114, it was said “that the correct rule is that, when error of law manifestly appears, the presump tion of law is that it was to the prejudice of a party complaining of it, and that the judgment will be reversed by reason of it, unless it appear by the reqord that it did not operate to the injury of the party complaining.” This presumption of prejudice from the commission of error seems gradually to have become more conclusive, as will appear from Harper '0. Tapley, 35 Miss. 506, Josephine '0. State, 39 Miss. 648; Solomon v. Compress Co., 69 Miss. 319, 10 South. 446, 12 South. 339, and Foster '0. State, 70 Miss. 755, 12 South. 822, and reached its apotheosis in Lipscomb State, 75 Miss. 559, 23 South. 210, 230, wherein it seems to have been held that this court has nothing whatever to do with the correctness of the result reached by the jury in the court below, but must in all cases reverse for the commission of an error “of such character as that the jury itself might have been influenced by it.” 75 Miss. 599, 620, 23 South. 221. After the decision of this case, however, this court con tinued to decline to reverse judgments, notwithstanding the commission of error by the court below of the character here under consideration, when it appeared from the whole record that justice had been done; and in Rector v. Outzen, 93 Miss. 256, 46 South. 408, it seems to have returned to the earlier and orthodox rule, for it is there said that “in order to secure a reversal it must be shown that there was an error and that the error was prejudicia1.” Until it is shown that the party against whom an error was committed has failed to obtain

justice, it cannot be said that he has been prejudiced--that is, injured or damaged—by its commission. \ Sec. 3] DISPOSITION or Cass Uron Rnvmw 1187

The objections generally urged against the rule now under consideration are that by acting upon it the court invades the province of the jury, and that its frequent application would cause the rules of evidence to be less carefully considered. The second reason may have some foundation in fact, but we must remember that the rules of evidence are not an end in themselves, but merely a means to an end, and when the end sought has been reached it is folly to reject it merely for the reason that the jury arrived at it in a manner other than that contemplated by the law. The first reason is wholly without merit, for by applying it an appellate court, instead of invad ing the province of the jury, upholds it to the full extent in its prerogative of determining what the truth of the matter in controversy is, and declines to interfere unless it clearly appears that it has failed to correctly discharge this duty. This court is one of appellate jurisdiction only, and its sole duty is to correct errors made in the courts below which have operated to the prejudice of the parties complaining thereof, and until both error and prejudice resulting therefrom are shown by the record it should not and will not interfere with the course of justice. It will continue to protect litigants in all of their fundamental rights, and will see, so far as in its power lies, that full and complete justice is administered to them. Nevertheless it must be thoroughly understood, in the language used by Judge Whitfield in his dissenting opinion in Lipscomb '0. State, 75 Miss. 617, 23 South. 228, “that this * "‘ * tribunal is not a helpless prisoner, bound in the fet tcrs of some supposed hard and fast rule requiring it to re verse cases where, first, erroneous instructions have been given; or, second, proper instructions have been refused; or, third, competent testimony has been excluded; or, fourth, in competent testimony admitted; or, fifth, improper argument has been allowed; or, sixth, the trial court has erred in its rulings on the pleadings—on the ground, merely, that such action of the court, of the one kind or the other, constitutes error in law merely,” and that for the commission of such an error the judgment of a trial court will be reversed only when it “affirmatively appears from the whole record that such judgment has resulted in a miscarriage of justice.” Suggestion of error overruled. " 1188 TRIAL AND APPELLATE PRACTICE [Chap. 10

COOPER & CO. v. COATES & CO. / Supreme Court of the United States. 1874.

21 Wallace, 105.

HUNT, J. ‘ ‘ ' The objection to the evidence of the witness, White, in stat ing the dates of delivery and the weight of the iron is not practical. If we suppose the evidence to be stricken out, as requested, the result of the case must necessarily be the same. It would then stand thus: The witness, White, testifies that he knows of the delivery to the defendants of certain plates of iron, forwarded by the Baltimore and Ohio Railroad Com pany, in January and February, 1870; that the freight bills were paid by the defendants, and that the defendants made no complaint that the amount of the iron was less than it should be. The plaintiffs then proved by other witnesses that the four bills of iron were shipped by them by the Baltimore and Ohio Railroad to the defendants in pursuance of written or ders from them, marked C. & J. Cooper & Co., a few days prior to the dates mentioned in White’s deposition; that the bills of lading for the iron were mailed to the defendants, and that they never came back to the plaintiffs. This was prima facie evidence of the delivery of the iron as specified, and, no proof to the contrary being offered, it became conclusive. The plaintiff's case is as well without White's evidence as with it. The defendants suffer no injury by its retention, and have, therefore, no legal cause of complaint. Q # i * $ U IF Q # I

PANGBURN v. BULL.

Supreme Court of New York. 1828.

1 Wendell, 345.

Error from the Albany common pleas. The action in the common pleas was for a malicious prosecution, brought by * Bull against Pangburn. * * Sec. 3] DISPOSITION or CASE UPON REVIEW 1189

* * * WOODWORTH, J . The question of probable cause, is a mixed question of law and fact. Whether the circumstances alleged to shew it probable or not probable, are true and ex isted, is a matter of fact; but whether, supposing them true, they amount to a probable cause, is a question of law. (1 D. & E. 545.) The court observe, that upon this distinction pro ceeded the case of Reynolds and Kennedy, (1 Wils. 232) . The court below erred in submitting both the law and the fact to the jury. This was necessarily the consequence of the charge; for the court instruct the jury, that if from the testi mony they should be of opinion that the prosecutions were malicious and without probable cause, and the defendant knew the facts to be so, they ought to find damages for the plaintiff. The jury found damages for the plaintiff. Prob ably they had no difficulty in arriving at the conclusion that the defendant’s motives were malicious, after proof of the defendant’s declaration that he would bring the plaintiff four times to Guilderland for the same cause, and the course he pursued to eifect the object in view, but they also passed on the question of want of probable cause; and although the court ought to have instructed the jury whether, on the supposition that certain facts were established, they would show the want of probable cause, still, if on a review of the case by this court, it shall appear that, from the facts not disputed at the trial, there was evidently a want of probable cause, the verdict ought not to be set aside for the error of the court below in this respect, because this court are called on to pronounce on that question; and if they see that the jury have not erred in point of law, although the charge was erroneous, no injury has been done to the defendant below, of which he has a right to complain. In making this remark, however, it must be understood, that if the evidence as to any material facts is contradictory, or leaves the question doubtful whether the fact existed or not, then the error of the court is good ground for a reversal, inasmuch as this court cannot take upon itself to draw inferences from conflicting testimony; this is the exclusive province of the jury. * " ' ' 1190 TRIAL AND APPELLATE PRACTICE [Chap. 10

GORDON v. CONLEY. O’NEIL v. SAME. TWITCHELL v. SAME.

Supreme Judicial Court of Maine. 1910.

107 Maine, 286.

Three actions of assumpsit on accounts annexed, * " * The defendant filed a general motion in each action for a new trial and also excepted to several rulings of the presiding justice. SPEAR, J. These were three actions of assumpsit on ac counts annexed, severally brought by Seth C. Gordon, James B. O’Neil, and Herbert F. Twitchell, all of Portland, in said county of Cumberland, physicians and surgeons, against Rose A. Conley and trustees, to recover for professional services as expert witnesses three days each in the case of Dr. Gordon and Dr. O’Neil, and four days in the case of Dr. Twitchell; =ll ii #

The jury rendered a verdict for the plaintiffs Seth C. Gor don and James B. O'Neil each the sum of $112.50, and for the plaintiff Herbert F. Twitchell the sum of $150. The defend * ant introduced no testimony. * "‘ During the course of the trial, the defendant filed 43 ex ceptions to the rulings of the presiding judge. In view of the

conclusion of the court upon the motion, it becomes immate rial whether the rulings of the court as abstract principles of law were right or wrong. We shall therefore not undertake to discuss the exceptions. Upon the law and legal evidence, whatever the errors in the rulings of the court, the result of the trial was evidently right. It would seem like trifling with the ends of judicial procedure to say that an erroneous ruling. which did not affect the truth of the result, should be regarded

as a sufficient reason for the overturning of a fair and honest judgment. If the court erred, the jury did not. They were right. If the exceptions were sustained and the case retried along the lines of law laid down in the discussion of the mo tion, the only possible difference in the result would neces

sarily be confined to the amount of damages a new jury might render. But, as the damages are clearly not excessive, the

case should not be sent back for a new speculation upon this question. . ¥£ Sec. 3] DISPOSITION or CASE UPoN Rsvmw 1191

# $ It i i Q U Q C 1 Motion and exceptionsi~overruled. MELODY v. DES MOINES UNION RAILWAY CO.

Supreme Court of Iowa. 1914.

145 Northwestern Reporter, 466.

[Action at law to recover damages for personal injury al leged to have been occasioned by the negligence of the defend ant. There was a verdict and judgment for plaintiff, and de fendant appeals. Afiirmed. 161 Iowa, 695. On petition for rehearing the following opinion was given.] . PER CURIAM. * * * In submitting the case, the trial court charged the jury that, to find the defendant guilty of negligence as alleged, it must be found that by reason of its want of reasonable care “snow and ice had accumulated at the place where plaintiff was re quired to go in the discharge of his duty as switchman, and that they further allowed snow and ice to accumulate on the footboard,” and failed properly to remove such dangerous conditions of the switch yard and footboard, and, if the jury further found that “these conditions were the proximate cause of the injury to plaintiff,” then he was entitled to re cover. In other words, to charge defendant with liability the jury were required to find both the bad conditions of the foot board and of the yard, and that the two together were the proximate cause of the plaintiff's injury. Now, even upon the narrowest and most technical construction of the statute in the light of our prior decisions, there can be no reasonable doubt that negligence of the defendant or its employes with respect to the condition of the footboard is negligence con nected with the operation of the railway, and injuries result ing therefrom are clearly within the legislative intent as ex pressed in this statute, and, under the instruction, the jury could find for plaintiff only upon the theory that such negli gcnce was established. The fact that the court went further and required the jury also to find a negligent failure to properly care for the yard 1192 TRIAL AND APPELLATE PRACTICE [Chap. 10 only had the effect to cast upon plaintiff an additional burden of which the defendant has no cause to complain. 1 # 1 Q i I i 1 i #21

87 "The rule is well settled that a party on appeal to this court cannot assign error upon nor complain ot a ruling of the lower court as errone ous which is in his favor."—Kime v. Vetter, (1909) 172 Ind. 317.

WEISELS-GERHARDT REAL ESTATE co. v. PEMBERTON INVESTMENT co.

St. Louis Court of Appeals. 1910.

150 Missouri Appeals, 626.

NORTONI, J. This is a suit for commissions alleged to have been earned by plaintiff under an express contract. Plaintiff recovered, and defendant prosecutes an appeal. There is but one question presented for decision, and that relates to the fact the jury returned a verdict for just one-half the amount sued for, when it appears that under the terms of the contract plaintiff should recover, if anything, the full amount therein stipulated. * * “‘ The instructions submitted to the jury the question as to whether or not the contract for commissions was made. and the jury were directed that in event of a finding for plaintiff the verdict should be for $6,200. Though the jury found for plaintiff, it awarded him a recovery of $3,100, only, or, in other words, precisely one-half the amount sued for. Defend ant insists the verdict should be set aside for the reason it is not responsive to the issue in the case, and for the further reason that it discloses on its face the jury acted arbitrarily in the premises and in utter disregard of the evidence and in structions of the court. As a general rule, one is not entitled to a reversal of the judgment, because it is more favorable to him than the case asserted in the trial court justifies. 2 Ency. Pl. & Pr. 527. In keeping with this general doctrine, it has been several times decided in this state that a judgment should not be reversed on appeal for the reason it appears to be for a much smaller sum than the plaintiff insists was due or. the theory advanced for a recovery. The following

___,__i__._} ______..q-Q—~ Sec. 3] DISPOSITION OF CASE UPON REVIEW 1193 cases will illustrate: Alderman o. Cox, 74 Mo. 78; Gaty 12. Sack, 19 Mo. App. 470; Gifiord 12. Weber, 38 Mo. App. 595; Chinn '0. Davis, 21 Mo. App. 363; Crigler 12. Duncan, 121 Mo. App. 381, 99 S. W. 61. But in all of these cases the issues were such as to warrant the jury in reckoning with the equi ties involved, and it seems the verdicts were awarded accord ingly. There can be no doubt that a different rule prevails in this jurisdiction, at least when the suit is on an express con tract for a given amount, and the question presented relates solely to whether or not the contract was made as in the case now in judgment. The Supreme Court has conclusively set tled the question, so far as we are concerned, in Cole '0. Armour, 154 Mo. 333, 55 S. W. 476. The case mentioned is directly in point, and under the Constitution it is controlling authority here. For another adjudication to the same effect, see Powers v. Gouraud, 19 Misc. Rep. 268, 44 N. Y. Supp. 249. In Cole v. Armour, supra, the Supreme Court based its ruling on the ground that the verdict itself conclusively proved the jury did not believe the testimony going to establish the al leged contract. It is said, if the jury had believed the con tract was made as asserted by plaintiff, then its verdict neces sarily would have been for the full amount; for if the contract existed in fact, and plaintiff fully performed it, he was en titled to recover its full measure. On the other hand, in such suits on express contracts, if the jury believes no such contract was made, then no recovery at all may be allowed. The reasoning of the law in such circum stances is that, instead of acting on the evidence and in con formity with the instructions of the court, the jury proceeds to administer equities when none whatever are involved, for it is a clear issue of contract with all its terms and conditions or no contract at all. It is said by the New York court, in ac tions on contract in which the plaintiff is entitled to recover his full claim or nothing whatever and the jury awards a lesser amount, the verdict will be deemed to show that in de termining the case the jury either wholly disregarded the evidence, misapprehended its effect, or overlooked some im portant fact, or necessarily found some fact in favor of de fendant which is wholly inconsistent with the verdict for any amount in favor of the plaintiff, and it should therefore be set aside even on the motion of defendant. Powers v. Gour aud, 19 Misc. Rep. 268, 44 N. Y. Supp. 249. The reasoning 1194 TRIAL AND APPELLATE PRAcTIcE [Chap. 10 seems to be sound in logic in those cases where the sole issue is as to whether or not there is a contract between the parties and, if so, stipulating a certain amount, which plaintiff is en titled to recover, if at all. In such cases where the contract is wholly denied, it seems to be a just doctrine which permits the defendant to insist upon his right to have the jury re spond to the precise issue, for, unless there is a contract for the full amount, there is no right to recover at all. The judgment should be reversed, and the cause remanded. It is so ordered. All concur.

PEOPLE v. SMITH.

Court of Appeals of New York. 1902.

172 New York, 210.

Appeal from a judgment of the Supreme Court, rendered at a Trial Term for the county of Monroe, November 10, 1898, upon a verdict convicting the defendant of the crime of mur der in the first degree. MARTIN, “‘ * J. _* 5. Another class of exceptions argued by the appellant re lates to the admission of the evidence of the witness Albert L. Hall, who testified as an alleged expert as to the manufacture, uses, and differences of pistols and cartridges, the chemistry of burned powder and other substances, and to receiving the speculative opinion of the witness, which was incompetent, and subsequently stricken out by the court of its own motion, without consent or objection. The court was occupied several days in taking the evidence of this witness, to which there were numerous objections and exceptions that were obviously valid. * * * That this witness was improperly permitted to testify as an expert to many matters material to the investi gation, when he was obviously incompetent, can hardly be denied. * * * It is obvious from the record that the court struck out portions of the improper evidence which were spe cifically stated, and followed this action by a general state ment to the effect that all the testimony of that witness, ex ceptpthat pertaining to his experiments with powder after

__,__i_ Sec. 3] DISPOSITION or Cxss UPON Rsvmw 1195 revolvers had been discharged, and with reference to the ap pearance and condition of the fatal bullet, was stricken out, and the jury directed to disregard it. Subsequently other por tions of his testimony were directed to be stricken out. The court likewise stated that it would direct all exhibits intro duced on the examination of the witness to be stricken out if there was any question about them, but that they were actu ally stricken out does not appear. It may be fairly said that it is difficult, if not impossible, to ascertain, even from the record, with any degree of accuracy, the particular portions of the evidence of this witness which the court attempted to withhold from the consideration of the jury. This difficulty arises from the fact that it is hardly possible to determine what evidence pertained to his experiments with powder after revolvers had been discharged, what pertained to his testi mony with reference to the appearance and condition of the fatal bullet, to separate it from the other evidence which was given by him, or to ascertain what particular portion of the remaining evidence was subsequently withdrawn. The evi dence which was competent and that which was incompetent was so intermingled and woven together as to render it difii cult to separate one from the other, and it must have been almost, if not quite, impossible for the jury under the rulings of the court, to understand what portion of this evidence was to be disregarded, and what portion it was to consider. ‘ * * It seems to be settled by the decisions of this court that if evidence is improperly admitted, the mistake is immediately discovered, and the evidence promptly withdrawn, with in structions to the jury to disregard it, or if it is stricken out on the motion or application of the appellant, the error will be deemed cured or waived, and the exception to its admission deprived of its potency. Gall 12. Gall, 114 N. Y. 109, 21 N. E. 106; Holmes 'v. Mofiat, 120 N. Y. 159, 24 N. E. 275; People v. Schooleg/, 149 N. Y. 99, 103, 43 N. E. 536; Cole v. Coal Co., 159 N. Y. 59, 65, 53 N. E. 670; People v. Priori, 164 N. Y. 459, 469, 58 N. E. 668. The theory of the decisions to the effect that errors in re ceiving improper evidence may be cured when the jury are clearly and plainly instructed to disregard certain specified evidence so erroneously and recently received, and the evi dence is promptly stricken out, is based upon the presumption that the instructions of the court were obeyed. The circum 1196 TRIAL AND APPELLATE PRACTICE [Chap. 10 stances under which that rule has generally been applied were widely and essentially different from those in the case at bar. Here, many days had been employed in taking the testimony of this witness, and many pages of evidence had been given by him, which was so interwoven as to render it extremely difficult, under the rulings of the court, for a jury to under stand or determine what portion of the evidence remained in the case, which they were to consider, and what portion they were instructed to disregard. Under such circumstances, it would indeed be very extraordinary to presume that the jury in this case literally obeyed the instructions of the court, no matter how much they may have intended to do so. In the recent case of Ives 12. Ellis, 169 N. Y. 85, 90, 62 N. E..138, in competent evidence was received; the court at the time re marking, “I shall instruct the jury that the letter and the 5 statements in the letter do not in any wise prove the state ments therein contained, or any of them.” * ' * In dis cussing that question this court added: “But before an ap pellate court will hold that such an error has been cured, it must feel sure that the effort of the trial court to correct the error was necessarily effective with the minds of the jury. Now, that cannot be said of the caution of the court in this instance, for it must be borne in mind that this letter was introduced in the early part of the trial, which was not only a long one, but in its progress there Was an adjournment for a _~ period of ten days, during which the jurors presumably had their minds occupied with affairs of their own; and in view -1 of that situation it Was necessary that the court should so ac curately describe the letter which it wished them to disregard as to make it apparent that there could be no confusion in their minds as to what letter was referred to.” We think the principle of that decision is applicable to, and decisive of, this * case. * * In view of all these circumstances, it seems quite impossible to say that the error was waived, or that the court so accurately described the evidence to be disregarded, or that its directions were at a time when they would be so firmly impressed upon the minds of the jury, as to justify us in holding that there was a presumption that the jury obeyed the suggestions of the court, and the error in its admission was cured. # i i $ # 1 1 Q I I ~i Sec. 3] DISPOSITION or CASE Uron Ravuzw 1197

LEQUATTE v. DRURY.

Supreme Court of Illinois. 1881. /

101 Illinois, 77.

SCOTT, J . The bill in this case was to have partition made among the several heirs, of the lands of which it is alleged Isaiah and Priscilla Drury were either the legal or equitable owners at the time of their death. * ‘ "‘ On the trial of the cause before the court, complainants of fered as witnesses in their behalf, Eli and Silas Drury, two of defendants, who are heirs at law of Isaiah Drury, to prove facts in relation to the creation of a trust in these lands, and other facts occurring prior to the death of the 'common an cestor, as set forth in the bill. To the admission of the testi mony of the witnesses offered, defendant Stuart R. Drury ob jected, on the ground the witnesses were parties to the suit, and heirs of the common ancestor, and therefore directly in terested adversely to defendant interposing the obj&tion, and who defends as heir at law of Isaiah Drury; which objection was by the court sustained. That decision is the only error insisted upon in the argument as a ground for the reversal of the decree of the circuit court. It may be conceded, that under the decision of this court in Pigg 'v. Carroll, 89 Ill. 206, the witnesses called on behalf of complainants to testify concerning facts alleged in the bill as having occurred prior to the death of the common ancestor, were entirely competent for that purpose. Exactly what com plainants wished to prove by the witnesses is not definitely stated. Assuming, however, the material facts alleged in the bill as having happened before the death of the common an cestor would be established by their evidence, still it is ap parent no harm was in fact done complainants by the exclu sion of the testimony, for the reason they have been guilty of such laches in asserting the rights they now claim that no decree could pass in their favor. Whatever rights complain ants may have had in these particular lands came to them on the death of Isaiah Drury, in 1854, and certainly as early as 1858, when Andrews reconveyed the premises to Stuart R. Drury. The bill in this case was not filed until April, 1871. “ * " Equity will not assist a party who has not been rea 1198 TRIAL AND APPELLATE PRACTICE [Chap. 10 sonably diligent in asserting those rights concerning which its aid is invoked. “ * "B

28 Conversely, there is no prejudice in any action of the court where the appellant succeeds in spite of the error on the matter in respect to which exception is taken.—Good v. Knox, (1891) 64 Vt. 97; Dixon v. Russell, (1914) 156 Wis. 161; Hamilton v. Mich. Cent. RR. Co., (1903) 135 Mich. 95; Brigham v. Morgan, (1904) 185 Mass. 27; Greenleat v. Egan, (1883) 30 Minn. 316.

JOHNSONiiv. FEATHERSTONE. Court of Appeals of Kentucky. 1911.

1./,1 Kentucky, 793.

O’REAR, J . Appellee brought this action of slander against appellant, who had charged appellee with the crime of false swearing committed in the course of a trial of a civil action in the Hickman circuit court. * " " It is insisted by appellant that the demurrer to the petition should have been sustained because the petition did not al lege that the testimony in question had been given in a judi cial proceeding or trial in court. An amended petition was filed before the trial containing this averment. Although the petition may have been bad, and the demurrer should have been sustained, the amendment cured the defect. The error, if one, was thereby also cured. * " ‘"9

89 So, error in sustaining a demurrer to one defense is not prejudicial where the same matters appeared in other defenses under which they were litigated,-—Koch v. Story, (1910) 47 Colo. 335; and error in refusing to permit an amendment is ha-rmiess where other counts sufliciently cover the same ground,—Sharpe v. Nat. Bank, (1888) 87 Ala. 644.

r v

L L _ .|¢-I" Sec. 3] DISPOSITION or CASE UPON Ravmw 1199

\ (d) A flirmance.

WARDER, BUSHNELL & GLESSNER CO. v. JACOBS.

Supreme Court of Ohio. 1898.

58 Ohio State, 77.

MINSHALL, J. The action below was a suit brought by Treca A. Jacobs against the defendant, Warder, Bushnell & Glessner Company, to recover the possession of certain per sonal property that had been taken in execution on a judg ment that had been rendered in their favor against the hus band of the plaintiff, the wife claiming to be the owner of the property. The attorney for the plaintiff, in the course of his argument to the jury as shown by the record, used the follow ing language: “Gentlemen: The plaintiff‘ is a poor woman. Your verdict against her will mean much, very much; but to the defendants, with all their wealth, residing in their mag nificent castles in the city of Springfield, a verdict against them does not hurt them,”--to which remarks, as the record says, the defendants “then and there objected and excepted.” This is all the record discloses in regard to the matter, other than that, after a verdict for the plaintiff, a motion for a new trial was made on this among other grounds, which was over ruled by the court, and judgment rendered on the verdict. A bill of exceptions was taken and made a part of the record, showing the matters above stated. It also contained the evi dence given at the trial; but, as nothing is claimed from the evidence, it has been omitted in the printing of the record. The judgment was affirmed on error by the circuit court. The only ground for a reversal relied on in this court is the misconduct of plaintiff's counsel in using the words to the jury above stated. Certainly these remarks were of the most reprehensible character, and it is a matter of some surprise that counsel should so far forget himself in argument to the jury as to commit such a breach of his privilege as is shown by the words used in this case. No heat of argument nor zeal for his client, can be admitted as a palliation of" such an offense against the fair administration of justice. But the question arises whether, upon this record, anything appears from 1200 TRIAL AND APPELLATE PRACTICE [Chap. 10 which this court can say there is error in the judgment for which it should be reversed. It is a settled principle of prac tice in all reviewing courts that the error for which a judg ment may be reversed must aflirmatively appear on the face of the record. From the record before us it simply appears that these observations were made by counsel for the plaintiff to the jury, and that counsel for the defendant then and there “objected and excepted.” From this we readily infer that counsel “objected” to the remarks of the opposing counsel, as he had an undoubted right to do. But to what did he “ex cept.” An exception is not to the act of a party, but to that of a court in ruling on an objection. What the court did in this matter is not disclosed by the record. The court may at once have reproved the counsel and instructed‘ the jury, in the most positive terms, not to regard the remarks of counsel in arriving at their verdict. To this the defendant could not have excepted, or, if he did, the exception would be unreason able and of no avail. If the court took no notice of the objec tion, or overruled it, then the defendant might reasonably have excepted, and such action of the court would have been a clear ground of error, for which the judgment should be reversed. But, inasmuch as the record is silent as to what the court did, we are not permitted to assume that it did what it should not have done. On the contrary, the only presump tion we are permitted to make, in such case, is that the court performed its duty in the premises,—reproved the counsel and properly instructed the jury at the time. If he did not, and a review of its action is desired, the party excepting must cause the record to show what the ruling of the court was; otherwise it cannot be said to aflirmatively appear that the court committed error. * IF ll * # # Q 1' I # The evidence is not before us, so that the question pre sented is whether, where a record shows that improper re marks were made by counsel of the prevailing party, to which objection was made at the time, but does not show the ruling of the court, should the verdict and judgment thereon be set aside and reversed as a matter of course? We think not; for, in such case, for aught that appears, the court severely re proved the remarks of counsel, directed the jury not to regard them, and the evidence may show a clear case for a recovery on the part of the prevailing party, notwithstanding the of Sec. 3] DISPOSITION or CASE UPON REVIEW 1201

fense of his counsel. As much as we reprehend such practice in counsel, we are not prepared to say that the use of such language may not be so far corrected by the court by the re proof of counsel and instruction to the jury, as, in a clear case upon the evidence, to warrant the court trying the case to sustain the verdict rendered. "‘ " “ * * * The judgment is therefore afi"1rmed.*°

80 PRESUMPPIONS in support of the judgment, in the absence of any showing in the record to the contrary, are made by the appellate court in a great variety of cases. Thus, every presumption is indulged in favor of the jurisdiction of the lower court over the parties,—Hughes v. Cumlng, (1900) 165 N. Y. 91, and subject matter-,—McFarland v. Stewart. (1899) 109 Ia. 561; it is presumed that the parties had proper capacity,-— Batchelder v. Baker, (1889) 79 Cal. 266; that proper pleadings were filed,--Seidschlag v. Town of Antioch, (1904) 207 Ill. 280; that amend ments were duly allowed,—Hanchy v. Brunson, (1913) 181 Ala. 453; that due notice of the application for an interlocutory order was given and all objection to the order was waived,—Shore v. White City State Bank, (1899) 61 Kan. 246; that depositions were properly taken,-— Simonds v. Cash, (1904) 136 Mich. 558; that evidence admitted was properly admissible,—Perkins v. Hayward, (1890) 124 Ind. 445; that evi dence excluded was not properly admissible,—State ex rel. v. Maloney, (1892) 113 Mo. 367; that instructions given were correct and sufficient, Batchelder v. Home Nat. Bank, (1914) 218 Mass. 420; that the jury obeyed the court's instructions,—Vasby v. U. S. Gypsum Co., (1912) 46 Mont. 411; that the court below found all the facts necessary to support this judgment,—Halb0uer v. Cuenin, (1909) 45 Colo. 507; that the ruling on a motion for a new trial was correct,—Santos v. Roman Catholic Church, (1909) 212 U. S. 463; that the court was justified in directing a verdict,—Ra1ya v. Atkins & Co., (1901) 157 Ind. 331.

COOK v. GLOBE PRINTING CO.

Supreme Court of Missouri. 1910. \

227 Missouri, 471.

The gist of the complaint of the plaintiff is that defendant published that plaintiff had made a false affidavit under the Corrupt Practices Act, and thereby charged the plaintiif with the crimes of perjury and of making a false affidavit. GANTT, J . This is an action for libel. The defendant is a corporation, and the owner and proprietor of the well-known metropolitan newspaper, the St. Louis Globe-Democrat, printed in the city of St. Louis. His action is founded on an 1202 TRIAL AND APPELLATE PRACTICE [Chap. 10 alleged libelous and defamatory article, which appeared in that paper, and in its issue of February 12, 1905. 1 U 1 i # 1! l IF 8 l 7. We are finally brought to the last contention of the de fendant that the verdict is so excessive that it was clearly the result of passion or prejudice, or both. The jury returned a verdict assessing plaintiff's damages at $75,000 actual, and $75,000 punitive, damages. * "‘ "‘ Proceeding, then, to the consideration of the contention of the defendant that the verdict in this case is so excessive and unreasonable that it should be set aside, it is to be remarked, first, that we are all of the opinion that there was no error in the instructions of the court, or in any of its rulings in the admission or rejection of the testimony, or upon its con struction of the pleadings in the case. That the publication, which is a basis of the action, was libelous we think there can be no doubt whatever, so that the sole question remaining is Whether the verdict is so excessive as to indicate that it is the result of prejudice or passion. In our opinion the verdict is excessive and is unusually large, but it does not follow that, because the verdict is too large, it is necessarily the result of prejudice or passion. * * "‘ The court said, in the case of Chicago Street Ry. C0. v. Wriwon, 150 Ill. 532, 37 N. E. 895, after an exhaustive examination of the authorities in this state, it was said: “We are committed to the practice of allowing remittiturs in ac tions ex delicto, both in the trial and appellate courts, to such sums as shall to the court seem not excessive, and conform ing as to the balance of the judgment.” And the practice therein referred to is now too well established to be ques tioned. Railroad Company v. Musa, 180 Ill. 130, 54 N. E. 168; Railroad Company v. Lewandowski, 190 Ill. 301, 60 N. E. 497. The decisions of this court as to the power of this court to require a remittitur in actions for unliquidated damages are not uniform * * * The rationale of these late cases is that the fact that a verdict is too large does not itself indicate that the jury were actuated by passion or prejudice, where there was no error in the admission or rejection of testimony or in the instructions of the court, and no misconduct on the part of the jury was shown, and the evidence established that the plaintiff was entitled to a substantial verdict, and that in such Sec. 3] DISPOSITION or Cxss UPON REVIEW 1208 case, if the plaintiff would consent to a remittitur of a part of his verdict, the defendant could not complain. Accordingly it is ordered that, if the plaintiff shall remit $50,000 of the amount assessed for actual damages, and shall also remit $50,000 from the amount of punitive damages as sessed in the verdict within 20 days, the judgment will be affirmed for $25,000 for actual damages and $25,000 for puni tive damages, aggregating $50,000. Otherwise the judgment will be reversed, and the cause remanded for a new trial.

VALLIANT, C. J ., and Busosss, Fox, and Woooson, JJ., con cur. LAMM and GRAVES, JJ., dissent in separate dissenting opinions.“

81Aflirmance of judgment on condition is frequently ordered where the condition is simple and its performance will entirely remove the necessity for a reversal and new trial. Thus the appellee, as a condition of afilrmance, has been required to enter a release of a part of the judg ment,-—-Baxter v. Baxter, (1910) 46 Ind. App. 514; or to deliver up an instrument for canceliation,—Lustig v. McCulloch, (1897) 10 Colo. App. 41; or to consent to the correction of the verdict to show a proper de scription of land,—Townsend v. Kreigh, (1903) 133 Mich. 243; or to file a release of liability of a party not joined,—Culver v. Smith, (1899) 82 Mo. App. 390; or to stipulate against the use of the judgment as a bar under certain circumstances,—Hartford v. Greenwich Bank, (1913) 157 N. Y. App. Div. 448.

JACKSON & SHARP CO. v. FAY.

‘ Court of Appeals of the District of Columbia. 1902.

20 Appeal Cases, District of Columbia, 105.

A motion on behalf of the appellant to modify the judg ment of affirmance, was denied on the 23d day of June, 1902, MORRIS, J . In this case, upon a demurrer filed by the ap pellee Fay, as defendant in the court below, to the declaration of the appellant as plaintiff, the demurrer was sustained; and the plaintiff thereupon electing to stand by its declaration had judgment rendered against it, from which it appealed to this court. Here the judgment was affirmed. Now the appel lant comes and moves the court for a modification of the judgment of affirmance in such manner “as will admit of an 1204 TRIAL AND APPELLATE PRACTICE [Chap. 10 amendment of the pleadings in the particular in which this court holds them to be defective.” Plainly this is an application which should not be enter tained, except for very grave reasons and in exceptional cases. The ground of the application is that this court based its decision upon a very different ground from that on which the court below proceeded. But the demurrer was a general demurrer to the plaintifl"’s declaration, in which several grounds of invalidity of the declaration were stated; and if the court below preferred to rest its decision on one of these grounds and this court upon another, it is not apparent that the plaintiff was not duly notified of the imperfections of its case as made by it. Instead of amending its declara tion, as it was then duly notified to do, it deliberately elected to standby that declaration and to try its fortunes in this court, with the reservation, as we may assume, that it would go back and try the case over again, if the decision against it should happen not to be sustained upon the precise grounds for it assigned by the court below. We find no warrant in law for this practice; and we do not think that it would be in accordance with the requirements of justice. Various cases have been cited in which appellate courts have remanded causes for the purpose of amendment in order that full justice might be done in the premises. Magruder v. Belt, 7 App. D. C. 303.; Waite '0. Larocque, 12 App. D. C. 410; Wiggins Perry Co. v. Railroad Co., 142 U. S. 396; Liverpool, etc., C0. 'v. Phoenix Co., 129 U. S. 397; Jones '0. Meehan, 175 U. S. 1; Melville 'v. Railroad Co., 2 Mackey, 63; Merrick v. Giddings, McA. & Mackey, 57. The majority of these cases are of equity cognizance, wherein it is always proper to direct amendment whenever the interest of justice seems to require it. But we have no hesitation in saying that we think that in causes at common law as well as in equity the power of amendment conferred by statute may be freely exercised or authorized by appellate courts, if such is the requirement of justice in the particlular case. * * "‘ Here we have a dis tinct notification to a party that his pleading is defective and that he should amend, if he would recover, and a final re fusal by him to avail himself of his right. If we were to allow or direct amendment now, it would be impossible in the future to have any finality in such cases, either in the court Sec. 3] DISPOSITION or CASE UPON R1-zvnaw 1205 below or in this court. The motion for modification must be refused."

82 In the absence of appropriate statutes of amendmentslsuch affirm ance with permission to amend or plead over would probably be unau thorized.—Piper v. Hoard, (1887) 107 N. Y. 67; Whiting v. Mayor, (1868) 37 N. Y. 600. ~-A l DUNTON v. MCCOOK.

Supreme Court of Iowa. 1903.

120 Iowa, /+44.

[Tyrrell conveyed a parcel of land to McCook by a deed absolute on its face. Dunton, a judgment creditor of Tyrrell, brought an action in which he sought to have this deed de clared a mortgage, and asked that his judgments be decreed to be liens upon Tyrrell’s interest in the land and be satisfied out of that interest. The court, on May 18, 1892 made the decree as prayed and found that $524.44 was still due to McCook on Jan. 1, 1890, and that upon payment thereof Tyrrell would be entitled to a reconveyance of the land. This was affirmed on appeal on Jan. 18, 1895. A rehearing was denied June 1, 1895, a procedendo was filed in the district court June 22, and on Feb. 6, 1896, Dunton was given leave to file a “supplemental petition” alleging that McCook had been in possession of the premises since Jan. 1, 1890, and had received more than enough in rents and profits to cover the balance due him, and asking for an accounting and that Dunton’s liens be confirmed and be satisfied by sale of the premises. The district court so decreed, and McCook ap pealed.] ' LADD, J . The original decree in this case was entered in the district court May 18, 1892. Upon appeal that court lost jurisdiction. As said in Levi v. Karrick, 15 Iowa, 444: “When appeal is taken, all power of the court below over the parties and subject-matter is lost until the cause, or some part thereof, is remanded back, by order of this court, for its further action.” McGlaughlin 12. O'Rourke, 12 Iowa, 459; Stillman 12. Rosenberg, 111 Iowa, 322, 82 N. W. 768. But 1206 TRIAL AND APPELLATE PRAcT1oE [Chap. 10 pending such appeal the decree continued in full force for all purposes. Watson v. Richardson, 110 Iowa, 698, 80 N. W. 416, 80 Am. St. Rep. 331. It was affirmed in this court January 18, 1895, and petition for rehearing denied June 1st of that year. That ended the suit. Thereafter it was pend ing in neither court. The afiirmance was merely a ratifica tion of what had been done in the lower court, and left the parties in precisely the same situation as though no appeal had been taken. U. S. v. Jones, 26 Fed. Cas. 638 (No. 15,492) ; Steinbaclc 'v. Stewart, 11 Wall. 566, 20 L. Ed. 56; 3 Cyc. 422; Werborn v. Pinney, 76 Ala. 291. Under our prac tice a new decree is not entered in the Supreme Court upon aifirmance, but that of the court below confirmed, with a judgment for costs added. As the cause was not remanded for any purpose, the district court did not acquire jurisdic tion to retry any of the issues subsequent to appeal. The suit having been terminated, the clerk could not revive or open it again by issuing a procedendo. The only purpose for that process in such a case is to notify the district court that it is at liberty to enforce its decree. In Steel v. Long (Iowa) 84 N. W. 677, an order of the district court striking a cross-petition filed subsequent to the affirmance of the original decree was approved, the court saying: “Not a thing remained for the trial court to do, nor was it directed to take further action in the matter. The original action was therefore, at an end, so far, at least, as the district court was concerned, and the defendant had no right to then file a cross-petition. If the position contended for by appellants were tenable, there would be no end to a cause of action. If a cross-petition may be filed and new parties brought in one week after final determination by decree it might, under such circumstances, be permitted one, two, or three years there after.” To the same effect, see McCall 1). Webb (N. C.) 36 S. E. 174; Greenwood Township 12. Richardson (Kan.) 62 Pac. 430; Herstein v. Walker (Ala.) 7 South. 821. So far as the questions at issue were concerned, the suit, upon af firmance, became a part of the irrevocable past. 2. But no attempt was made in the subsequent pleadings to change or modify the decree. The object sought related solely to the enforcement of that already rendered. True, the pleading filed by plaintiff is designated a “supplemental petition,” and, as contended, was not such as is contemplated —i Sec. 3] DISPOSITION OF‘ Cass UPON REVIEW 1207 by section 3641 of the Code. Leach v. Germania Building Ass'n, 102 Iowa, 125, 70 N. W. 1090; -Foote 'v. Burlington Gaslight Co., 103 Iowa, 576, 72 N. W. 755; Allen v. Davem port (Iowa) 87 N. W. 743. But the name by which it was labeled is not material. Though the court had lost jurisdic tion of the suit, it had not of the decree. It still retained the inherent power to enter appropriate orders for its en forcement. In Hartley 12. Bartrujf, 112 Iowa, 592, 84 N. W. 704, in approving an order extending the time fixed in the decree for redemption, we said: “The manner and time of carrying a decision into effect never rests upon evidence, in the sense that evidence controls these questions. These are always to be determined by the court, unaffected by the proof; and we can conceive of no good reason why, in a proper case, a decree may not be modified in the respect pro posed.” One of the advantages of a court of equity is that its decree may not only be so framed and molded as to pro tect the relative rights and duties of the parties, but its execution may be controlled, or even suspended for a time, as exigencies arising may require. Formerly decrees were executed by the parties; their obedience being compelled by proceedings in the nature of punishment for contempt, attachment, or sequestration. Statutes providing for other methods of enforcement, as by execution, are not usually construed to deprive the court of the power of general super vision of the enforcement of its decrees. Moreover, our stat ute expressly authorizes: “A defendant against whom a judgment has been rendered, or any person interested there in, having matter of discharge which has arisen since the judgment, may upon motion, in a summary way, have the same discharged, either in whole or in part, according to the circumstances.” * "‘ * The original decree determined that McCook held title as trustee, which might be divested upon the payment of a fixed amount by Tyrrell. If, because of matters transpiring subsequent to the entry of decree, McCook had been partially or fully paid, either from rents and profits by him collected, or from any other source, plain tiff or Tyrrell had the undoubted right to invoke the juris diction of the court, either under the statute quoted, or by virtue of the inherent powers a court of equity may exer cise over its decrees, and have the demand, to that extent, satisfied. That this was done by a pleading denominated a 1208 TRIAL AND APPELLATE PRAcTIcE [Chap. 10

“supplemental petition,” instead of a motion, ought not to deprive them of the. remedy. i i I i I I U 1 Q l The decree of the district court is affirmed, with direction that the cause be remanded only for the purpose of taking an accounting between the heirs and -defendant for rents and profits from the date of the last decree up to the present time, and thereupon entering judgment for the amount found owing either party. Aflirmed and remanded.

SHERWIN, J., took no part

(e) Modification.

IN RE FREDERICK.

Supreme Court of the United States. 1898.

149 United States, 70.

This is an appeal from an order denying an application for a writ of habeas corpus addressed to the court below by Albert Frederich, a prisoner confined in the penitentiary of the state of Washington, at Walla Walla, in that state. See 51 Fed. Rep. 747. The case, as made by the petition and accompanying ex hibits, is as follows: On the 17th of June, 1891, the prisoner was duly indicted by the grand jury of King county, Wash ington, for the murder of one Julius Scherbring, and upon said indictment he was subsequently arraigned, pleaded not guilty, was tried by a jury, and on the 26th of September, 1891, was found guilty of murder in the first degree. A mo tion for a new trial having been overruled, he was sentenced to be hung. From this judgment of death, and the order overruling his motion for a new trial, the accused appealed to the supreme court of the state, which reversed the judg ment of the trial court, and remanded the case, with a di rection to set aside and vacate the judgment imposing the sentence of death, but to let the verdict stand, and to enter a new judgment thereon for murder in the second degree,

W~ —~ Sec. 3] DISPOSITION or CASE UPON Rsvmw 1209 that being, in the opinion of the state supreme court, the proper degree of his crime, inasmuch as the evidence in the case did not show such deliberate and premeditated malice as would sustain a conviction of murder in the first degree. State o. Freidrich, 4 Wash. 204, 29 Pac. Rep. 1055, 30 Pac. Rep. 328, and 31 Pac. Rep. 332. This judgment of the supreme court was rendered under and in pursuance of the following provision of Hill’s Code of the state, (volume 2:) “Sec. .1429. The supreme court may affirm, reverse, or modify any judgment or order appealed from, and may di rect the proper judgment or order to be entered, or direct a new trial or further proceedings.” Pursuant to this order of the supreme court, the prisoner, on the 16th of June, 1892, was again brought before the trial court, and adjudged to be guilty of murder in the second degree, and he was thereupon sentenced to imprisonment in the state penitentiary for the term of 20 years. This sentence having been carried into execution, and the pris oner incarcerated in the penitentiary, he thereupon, on the 9th of August, 1892, made this application for a writ of ha beas corpus, claiming that he was deprived of his liberty without due process of law, in violation of the provisions of the fourteenth amendment to the constitution of the United States. The grounds upon which this application is based are that the supreme court of the state was without jurisdiction, and did not have any authority, under said section 1429 of the Code, or under any other law, to render the judgment it did; that all that court could do was either to affirm the judgment of the trial court outright, or to reverse it out right, and, under proper instructions, remand the cause for a new trial by a jury; that therefore its judgment was ab solutely void, and the judgment of the trial court in carry ing out the directions of the supreme court was, of necessity, void; and that the prisoner ought therefore to be discharged. The court below practically agreed with the petitioner that the supreme court of the state had misinterpreted said section 1429 of the Code, and that what it had actually done, by its decision and judgment, was to modify the verdict of the jury, which, under legal and proper proceedings, it had no authority to do; that its judgment, and the subsequent 1210 TRIAL AND APPELLATE PRACTICE [Chap. 10 judgment of the trial count carrying it into effect, were both void; and that, therefore, the petitioner's imprisonment was without due process of law, and in violation of the four teenth amendment to the federal constitution. The circuit court further ruled, however, that the petitioner’s proper remedy was not by writ of habeas corpus in the federal courts, in the first instance, but that he should first raise the question of his illegal imprisonment in the state courts, and, if it was finally decided against him by the state su preme court, he could then have it reviewed and corrected by the supreme court of the United States on a writ of error; and it accordingly denied the application. 51 Fed. Rep. 747. JACKSON, J. At common law the general rule undoubt edly was that where an erroneousjudgment was entered by a trial court, or an erroneous sentence imposed, on a valid indictment, the appellate court, on error, could not itself render such a judgment as the trial court should have ren dered, or remit the case to the trial court with directions for it to do so, but the only thing it could do was to reverse the judgment and discharge the defendant. This rule was recognized in England in the case of Rex '0. Bourne, 7 Adol. & E. 58, where the court of king's bench reversed the judg ment of the court of quarter sessions, and discharged the de fendants, because the sentence imposed upon them by that court Was of a lower grade than that which the law pro vided for the crime of which they had been convicted. Some of the states in which the common law prevails, or is adhered to, have adopted the same rule; but in most of the states it is expressly provided by statute that when there is an error in the sentence which calls for a reversal the ap pellate court is to render such judgment as the court below should have rendered, or to remand the record to the court below with directions for it to render the proper judgment, and this practice seems to prevail in the state of Washington. The whole subject is discussed in Whart. Crim. Pl. §§ 780, 927, Where the authorities are collected and cited. But whether this practice in the state of Washington is warranted, under a correct construction of said section 1429 of the Code, or whether, if it is, that section violates the fourteenth amendment to the federal constitution, in that it operates to deprive a defendant whose case is governed by it Sec. 3] DISPOSITION or Cass Urou Rnvmw 1211 of his liberty without due process of law, we do not feel called upon to determine in this case, because we are of opin ion that for other reasons the writ of habeas corpus was properly refused.” * # IF * Q 1 # Q # 13$

33 The other reasons referred to relate to the use of a writ of error as a more suitable remedy than a writ of habcas corpus. These are given in full in the portion of the case given in Chapter V, Sec. 5, supra. It does not appear that the constitutional objection to the practice here suggested has been approved by the Supreme Court of the United States. 84 Under modern statutes and rules of court modification of judgments in actions at law by appellate courts is a common occurrence and takes place in many forms. Thus formal or clerical errors in th_e judgment below may be corrected,—Belford v. Woodward, (1895) 158 Ill. 122; Hamilton v. Ames, (1889) 74 Mich. 298; the amount of the judgment may be changed to correspond to the findings,-—Lewis v. Sellick, (1887) 69 Tex. 379; the judgment may be conformed to the pleadings,-—Weed v. Lee, (1868) 50 Barb. (N. Y.) 354; a several judgment may be changed to a joint judgment,-—Wagenaar v. Beeman-Woodward Co., (1913) 65 Ore. 109; a party defendant may be dropped where the record shows a dis continuance as to him,—Stevens v. Saunders, (1909) 34 App. D. C. 321; a judgment for possession of land will be modified to reduce the amount of land covered,—Guilmartin v. Padgett, (Tex. Civ. App.) 138 S. W. 1143: a mistake as to interest may be corrected on appeal by a modification of the judgment,-—Fellows v. Dorsey, (1913) 171 Mo. App. 289; the amount of a money judgment may be reduced to harmonize with the evi~ dence.—Stuart v. Lumber Co., (1913) 66 Ore. 547. Scorn or Smruromr PROVISIONS. The following examples will illustrate the wide powers which statutes have given to appellate court.s:— Pennsylvania. “The Supreme Court shall have power in all cases to aflirm, reverse, amend or modify a judgment, order or decree appealed from, and to enter such judgment, order or decree in the case as the Supreme Court may deem proper or just, without returning the record for amendment or modification to the court below." P. L. 1901, 101, sec. 2. Construed in Smith v. Machesney, (1913) 238 Pa. 538. Missouri. “The supreme court, St. Louis court of appeals and Kansas City court of appeals, in appeals and writs of error, shall examine the record and award a new trial, reverse or aifirm the judgment or decision of the circuit court. or give such judgment as such court ought to have given, as to them shall seem agreeable to law." R. S. 1919, § 1514. C'alifornia. "The Supreme Court may affirm, reverse or modify any judgment or order appealed from, and may direct the proper judgment or order to be entered or direct a new trial or further proceedings to be had." Code Civ. Pro. § 53. Illinois. “The Supreme Court or Appellate Court, in case of a partial reversal, shall give such judgment or decree as the inferior court ought to have given, and for this purpose may allow the entering of a remit titur, either in term time or in vacation, and remand the cause to the inferior court for further proceedings, as the oase may require." St. ch. 110, § 111. New York. “In any action, on an appeal to the court of appeals, the court may either modify or afllrm the judgment or order appealed from, 1212 TRIAL AND APPELLATE PRACTICE [Chap. 10

award a new trial, or grant to either party such judgment as such party may be entitled to." Civ. Prac. Act, 1920, 5 604. “Where there is a case stated, or special verdict, the court of error must not only reverse the judgment below, it found erroneous, but enter a correct and final judgment."—Gra.l1am v. Bayne, (1855) 18 How. (U. S.) 60.

RICHMOND v. ATWOOD.

United States Circuit Court of Appeals, First Circuit. 1892.

52 Federal Reporter, 10; 2 Circuit Court of Appeals, 596

[Bill by Atwood against Richmond for infringement of a patent. The circuit court sustained the patent, found in fringement, and decreed a perpetual injunction and an ac counting. On appeal from the order granting the injunc tion the merits of the patent were considered, and the order granting the injunction was reversed. 48 Fed. 910. On a motion for rehearing the appellate court raised the question whether, in view of the want of merits in the complainant, the mandate should be confined to the order granting the in junction, or should be made broad enough to dispose of the whole case.] Before Cour, Circuit Judge, and CARPENTER and ALDRICH, District Judges. ALDRICH, District Judge. "‘ * ' Section 7, of the act of March 3, 1891, creating the cir cuit court of appeals, provides: “That where, upon a hearing in equity in a district court, or in an existing circuit court, an injunction shall be granted or continued by an interlocutory order or decree, in a cause in which an appeal from a final decree may be taken under the provisions of this act to the circuit court of appeals, an appeal may be taken from such interlocutory order or decree granting or continuing such injunction to the circuit court of appeals.” * “ "‘ It will be observed, from an examination of the cases in the supreme court of the United States, that a decree in patent cases, declaring the patent in question valid, and that it has been infringed, and for an injunction ~ and an _a¢.. Sec. 3] DISPOSITION or CASE Uron Ravmw 1213 counting, has uniformly been referred to as an interlocutory decree. * "‘ * * * * We must assume that congress, in furnishing equitable remedy by appeal, had reference to the equity system as understood and practiced in England, and as adopted and applied to our own institutions; and, in de termining the power and the duty which result from this legis lation, we must look to the English system, usage, and prac tice, and to the decisions of our state courts, where a similar right of appeal from such decrees has been conferred by statute. It is, of course, well understood that a court of equity is to decide on the law and fact, (Le Guen '0. G0uven eur, 1 Johns. Cas. 500, 506;) and that an appeal in equity is an appeal upon the law and fact involved in the case, (Adams, Eq. 375;) and that, “in absence of any restrictive clauses, every appellate tribunal is clothed with all the pow ers of the tribunal appealedfrom, and is bound to exercise them upon the same principles,” (Briggs’ Petition, 29 N. H. 553;) and “ordinarily, from the nature of' judgments, the decision of an appellate tribunal must have as great force, at least, as the judgment of the inferior tribunal upon the same matter would have had if no appeal had been taken,” (Blake 'v. Orford, 64 N. H. 302, 10 Atl. Rep. 117.) Unquestionably the circuit court upon the hearing therein might have found the facts against the complainant and dis missed the bill, and the question presented is whether this court, having an appeal before it involving the same record and the same facts, may, if error is found upon the general question of right, proceed to do what the court below should have done; or shall this court, although it has examined the record, and determined the right under the patent the other Way, simply dissolve the injunction, permit the accounting to go on, and, after the useless expense and annoyance in cident to such an investigation, upon re-examination of the same record, by the same court, put in execution the right which it had necessarily determined in the appeal thereto fore considered? In our view, the accounting could in no way aid the final execution of the right already ascertained, by this court, and under such circumstances would be worse than idle; and a rule which would permit such circuity and circumlocution is unnecessary, and would not be useful to either the parties or the court. Now, this case must be dis 1214 TRIAL AND APPELLATE PRACTICE [Chap. 10 tinguished from the class of cases where the injunction is preliminary, and granted upon the bill, or where there is only a partial hearing upon the merits, or where the record is incomplete, or evidence is excluded which should have been considered. We are not called upon to decide as to the scope of the mandate under such circumstances, but it is probable that no one would contend that, as an invariable rule, it should go to a final disposition of the cause upon its merits. Deas 'v. Thorne, 3 Johns. 543; Huntington v. Nicoll, Id. 566. "‘ "' "' g In the case under consideration, the hearing in the circuit court upon the merits, as to the validity and the infringement of the patent, was full and complete, and the general property right was determined, so far as it could be done by that court; and the perpetual injunction, the order to account, and the appointment of the special master were based upon such determination of the property right. The record before us is complete. Everything is here for our consideration which was before the court below. We must go to the full merits, as shown by the record, in order to determine whether the interlocutory decree for a perpetual injunction is founded in error, and, if we determine the property right adversely to the complainant, the injunction should be dissolved; and no sufiicient reason has been sug gested why the accounting—to which the complainant is not entitled, and which would be an invasion of a right, and therefore inequitable and improper, under our view of the case—shou1d proceed. III # * * it ll * Q! Ii #

In England, any person aggrieved by a decree or order

of the court of chancery is entitled as a matter of right to appeal to the house of lords, (2 Daniell, Ch. Pr., 4th Ed., 1471;) and, in practice, this right extends to interlocutory decrees, (Id. 1492; Forgay v. Conrad, 6 How. 201, 205;) & and later (14 15 Vict. c. 68, § 10) this right was extended to decisions, decrees, and orders of the court of appeals. Mr. Daniell, speaking of the right of appeal from interlocutory decrees, says, (page 1492, Id.:) “Appeals from courts of equity by petition differ from appeals by writ of error from the judgments of the courts of law, which will only lie where the judgment is final. The reason for this distinction is stated to be that courts of Sec. 3] DISPOSITION or (Lass Uron Rsvmw 1215

equity often decide the merits of a case in intermediate orders, and the permitting of an appeal in the early stage of the proceedings frequently saves the expense of further prosecuting the suit." See, also, 2 Smith, Ch. Pr. (2d Ed.) p. 40; McNeill v. Ca. hill, 2 Bligh, (N. S.) 316. Indeed, it seems to have been the practice, from an early period, in the house of lords, to direct a final disposition of causes before it with a full record, upon appeal from inter locutory orders and decrees based upon a hearing upon the merits below, whenever it was found that there was no * * equity in the complainant's cause. _‘ This practice is by no means new in the equity jurispru dence of our own country. In a very early case in New York, involving interests of great magnitude,—Le Guen v. Gouveneur, 1 Johns. Cas. 436, (1800,)—-and at a period when Chancellor Kent was a member of the court of errors. the question was under consideration as to the measure of relief to be afforded upon an appeal from an interlocutory order directing the trial of an issue at law. The appellate court determined that the complainant had no equity, and after much argument and full consideration, which involved a review of the English cases and the practice of the house of lords, proceeded to final judgment, and dismissed the bill. The question was one of new impression in the Amer ican courts, and three judges rendered opinions in the cause; Kent, J., in the course of a luminous opinion, (page 508,) saying: “It is the settled rule of the house of lords in England, upon appeals, always to give such a decree as the court be low ought to have given. This is the great and leading maxim in their system of appellate jurisprudence, and in stances are, accordingly, very frequent, in which the lords, on appeals from interlocutory orders in chancery, have re versed the order, and decided fully on the merits.” i l $ ii 3 I= # $ # # Under the authorities, and the equity practice to which we have referred, and upon principle, it seems to us clear that, while the appellate court is not bound by an inflexible rule so to do, it may in its discretion, and should, when equity so requires, make full directions as to the manner in which the cause shall be disposed of below. No special or peculiar

4 "'i_€F

1216 1 TRIAL AND APPELLATE PRACTICE [Chap. 10 conditions have been suggested as existing in this case, as a reason why the mandate should not be as broad as the decree in the circuit court; but, on the contrary, as it seems to us, there are strong equitable reasons why an accounting in a patent case, which is incident to and based upon a find ing and a decree which upon the record appears to the ap pellate court to be erroneous, should not proceed; and it is our conclusion, as the full record is before us, upon appeal from an injunction granted by an interlocutory decree, after a full hearing, and a finding which undertakes to finally dis pose of the property right involved, that we should direct a final disposition of the cause in accordance with the view which we hold upon the substantial merits. It therefore fol lows that the findings of the circuit court are reversed, the decree for an injunction and for an accounting is vacated, and it is ordered that a mandate issue accordingly, and with further direction that the bill be dismissed.“

86 In harmony with this case are cases in the second, third, seventh eighth and ninth circuits, and opposed to it are cases in the fifth and sixth circuits. This conflict of authority was settled in Smith v. Vulcan Iron Works, (1896) 165 U. S. 518, in favor oi! Richmond v. Atwood, after a full consideration and citation of all the prior decisions. No modification oi.’ a character beyond the jurisdiction of the trial court can be made by the appellate court.-—Cross v. Eaton, (1882) 48 Mich. 184.

(f) Reversal.

STOTLER v. CHICAGO & ALTON RAILWAY CO.

Supreme Court of Missouri. 1906.

200 Missouri, 107.

LAMM, J. Suit for personal injuries at a road crossing. The defendant railway company is incorporated under the laws of Illinois and operates a railroad running from Louis iana, Mo., through the city of Laddonia, in Audrain county, to Kansas City. Defendants Wiseman and Haines are resi dents of Missouri and servants of their corporate codefend Sec. 3] DISPOSITION or CASE UPON REVIEW 1217 ant, acting respectively as conductor and engineer on the train doing the injury. " * " 6. * * * There was no evidence of any probative force tending to show that the conductor, Wiseman, was guilty of negligence. * * "‘ In this condition of things, we are met with the contention on appeal that the judgment must necessarily be reversed because there was no evidence to sus tain a verdict against Wiseman. * “ "‘ We consider it established on reason and authority that we may reverse as to one tort-feasor and affirm the judgment as to others. Rev. St. 1899, § 866. The earlier doctrine was to look on a judgment as an entirety, and to be reversed as to all, if reversed as to one. But the later and better rule is to go deeper than the mere shell of the judgment and look into the nature of the case itself, and, where the in terests of parties to an appeal may be rightfully severed, Where the errors do not affect the parties jointly, and where the rights of one party are not dependent upon those of an other, then it is not necessary to reverse the entire judgment. Elliott on Appellate Procedure, §§ 574, 575. The case at bar comes within the foregoing rule, and the doctrine of this court is well established that in such case the judgment may be reversed as to one party and affirmed as to the other par ties. * "‘ “‘ We are of opinion there is no reversible error in the case as to defendants Haines and the railway company, and that the judgment should therefore be affirmed as to them, but reversed as to the defendant Wiseman. It is, accordingly, so ordered. All concur."

88 But this will not be done where it will work an injustice.—Wash ington Gas-light Co. v. Lansden, (1898) 172 U. S. 534. See extensive note in 27 L. R. A. (N. S.) 209, citing cases for and against the rule of the principal case. Where a strictly joint judgment, as on a joint contract liability, is ren dered against two, it must be afiirmed or reversed as to both.—Schoen berger v. White, (1903)_ 75 Conn. 605. “The rule that a judgment against two or three defendants is a unit and if erroneous as to one defendant must be reversed as to all, does not apply to decrees. But when the nature of the decree is such that the same reasons apply, the same rule must be held applicable."—Pitts burgh, etc., RR. C0. v. Reno, (1905) 123 Ill. App. 273. , ____‘__'_l

1218 TRIAL AND APPELLATE PRACTICE [Chap. 10

LOOMIS v. LEHIGH VALLEY RAILROAD CO.

Court of Appeals of New York. 1913.

208 New York, .912.

The action was brought to recover the cost of lumber which the plaintiffs, as shippers of produce over defendant’s railroad, bought and used for the purpose of making certain freight cars furnished by the defendant suitable for such shipments. At the Trial Term the court directed a verdict for the amount of the plaintiffs’ claim, and denied defend ant’s motion for the direction of a verdict in its favor. IF # # * * * The defendant relies upon the assertion (1) that it was under no common-law duty to furnish to the plaintiffs cars equipped with grain doors, bin doors, or bulkheads, and (2) that even if such a duty had ever existed, it had been abolished by the provisions of the Interstate Commerce Act of February 4, 1887, c. 104, 24 Stat. 379 (U. S. Comp. St. 1901, p. 3154), and the Elkins Act of February 19, 1903, c. 708, 32 Stat. 847 (U. S. Comp. St. Supp. 1911, p. 1309), and the Public Service Commissions Act of the state of New York (L. 1907, ch. 429), pursuant to which the defendant had filed tariffs of rates which contained no provision for payments or allowances to shippers for grain doors, bin doors, or bulkheads placed in cars by them. WERNER, J . The first question to be considered is whether, independently of the federal and state statutes, the defendant was subject to a common-law duty to its shippers to furnish them cars equipped with bin doors or bulkheads for the shipment of grain and other produce in bulk. This question need not be discussed at length. It is the settled law that a common carrier must provide itself with vehicles which are safe and suflicient for the purpose intended. * * * As to the shipments set forth in the schedule annexed to the complaint, the defendant refused, after demand by the plain tiffs, to equip its cars with the necessary appliances. With out them the cars were practically useless. We think that, in these circumstances, the plaintiffs were justified in fur nishing the necessary lumber, and that for the concededly reasonable expense incurred by them they are entitled to \ .

Sec. 3] DISPOSITION or CASE Uron REVIEW 1219 recover from the defendant, unless the provisions of our Public Service Commission Law or of the Interstate Com merce Act have established a different rule. In view of the legislation to which we have referred, the subject under discussion naturally divides itself into two dis tinct branches. The one relates to intrastate shipments, and the effect of our state legislation upon the common-law rights and obligations of the parties, and the other refers, of course, to interstate transportation, in respect of which the effect of the federal statutes is to be considered. # * 1! * # # ii * * I These views lead to the conclusion that the plaintiffs are entitled to recover the money expended by them in equipping with grain doors and bulkheads the intrastate cars set forth in the schedule annexed to the complaint. The view which we are to take of the rights of the plain tiffs in respect of their interstate shipments is necessarily governed by considerations entirely different from those which have led to our conclusion as to the intrastate ship ments. Here we are upon different ground, for we are now dealing with federal statutes and with the decisions of fed eral courts in demarking their effect and interpretation. If the subject is covered by the enactments of Congress, and if the federal courts or tribunals are invested with jurisdiction over it, our jurisdiction is at an end, without regard to what it may have been at common law or under our own statutes. IF * ¥ * * * Congress has made it a question of rates over which the Interstate Commerce Commission has exclusive control, and in respect of which any justiciable controversy is referred exclusively to the federal courts. * * "‘ We have yet to consider whether we can divide the single judgment recovered by the plaintiffs, so as to sustain that part predicated upon the intrastate shipments, and to dis allow for lack of jurisdiction that part which rests upon the interstate shipments. The general rule in actions at law is that upon appeal from a single judgment the Appellate Court must afiirm or reverse as to the whole of the recovery and as to all the parties. Goodsell 22. Western Union Tel. Co., 109 N. Y. 147, 16 N. E. 324; Wolstenholme v. Wolstenholme File Mfg. Co., 64 N. Y. 272; Nat. Bd. of Marine Underwriters 12. Nat. Bank or the Republic, 146 N. Y. 64, 40 N. E. 500. The IF-_ 1

1220 TRIAL AND APPELLATE PRAo'r1cE [Chap. 10 reason of the rule is that it would produce endless confusion and embarrassment in the administration of justice to per mit single causes of action and judgments to be split up so that different parts thereof could be in litigation in different courts at the same time. We do not think this case is within the reason of the rule. Although there is no separation of causes of action, either in the complaint or in the judgment, there are manifestly two such causes if we are right in hold ing that there is a distinction between intrastate shipments and interstate shipments. They are easily separable. The result of our decision is that the plaintiffs are entitled to re cover upon one and not upon the other. In these circum stances it is both logical and just to make an end to the litigation by directing that the judgment shall be reduced to $64.45, and as thus modified affirmed, without costs of this appeal to either party. Wolstenholme '0. Wolstenholme File Mfg. Co., supra; Board of Underwriters v. Nat. Bank: of the Republic, supra." 87 Accord, see Seevers v..~Cleveland Coal Co., (1914) 166 Ia. 284. STROTTMAN v. ST. LOUIS, IRON MOUNTAIN & SOUTH ERN RAILWAY CO.

Supreme Court of Missouri. 1910.

228 Missouri, 154.

GRAVES, J . This cause is here for a second time. There was at least an attempted adjudication of it in Strottman v. Railway Co., 211 Mo. 227, 109 S. W. 769. We have purposely used the word “cause” instead of the Word “case." The cause when first here came by appeal from Jefferson county. Plain tiff, the widow of an engineer in the employ of defendant, sued for the alleged negligent killing of her husband. The negligence charged was the failure of a telegraph operator to deliver a train dispatcher’s message, through which failure a collision occurred and plaintiif’s husband was killed. VVhen that case came on for hearing in this court, by majority Qpin ion it was held that the deceased engineer and telegraph op. Sec. 3] DISPOSITION or CASE UPON REVIEW 1221 erator were fellow servants under the act of 1897 (Laws 1897, p. 96), but further held that such act of 1897 did not give the widow a right of action. This court upon an exam ination and hearing upon both the facts and the law entered a simple judgment of reversal, in words as follows: “Now at this day come again the parties aforesaid, by their re spective attorneys, and the court here being now sufiiciently advised of and concerning the premises, doth consider and ad judge that the judgment aforesaid, in the form aforesaid, by the said Jefferson county circuit court rendered, be reversed, annulled, and for naught held and esteemed, and that the said appellant be restored to all things which it has lost by reason of the said judgment. It is further considered and adjudged by the court that the said appellant recover against the said respondent its costs and charges herein expended, and have execution therefor. (Opinion filed.)” The present case was instituted in the circuit court of the city of St. Louis by a petition containing two counts. The two counts are the same save and except in the second there is an allegation of wanton and willful negligence and a prayer for punitive as well as other damages. Both counts of sairl petition contain the following allegations: “Within six months next after said accident, injury, and death of the plaintiff's husband, she brought her action against the de fendant in the circuit court of Jefferson county to recover damages therefor, and to recover upon the cause of action sued for herein, and subsequently, on May 14, 1903, recovered a judgment against the defendant therein, and said cause was thereupon taken by the defendant to the Supreme Court of Missouri, on appeal, and said judgment was by the Supreme Court of Missouri on the 2d day of April, 1908, reversed. 1 # i To this petition, the defendant filed a demurrer "‘ "‘ * This demurrer the trial court sustained, and entered its judgment for the defendant and from such judgment the plaintiff has appealed. The cause was briefed and argued here both upon the merits, and upon the question of res ad judicata. Such sufiiciently states the case. In our judgment the present case is determined without a rediscussion of the merits of the cause. The present case, whilst here upon petition and demurrer, is as if it were here upon all the original facts with an answer pleading former

1222 TRIAL AND APPELLATE PRAcTIcE [Chap. 10

adjudication. The petition was evidently so drawn as to force this situation. It avers all the facts necessary to be set out in an answer pleading former adjudication, and the de murrer raises the issue by conceding the pleaded facts. The demurrer performs a further office by raising a clear issue of law, i. e., that the petition upon its face shows a former ad judication of the cause of action stated, and for that reason discloses no right of action in the present case. We are, therefore, brought to the single question as to the force and effect of a simple judgment of reversal in an appellate court in a case where such court passed upon the entire cause, in cluding both the law and the facts. The exact question is here for the first time. In all the history of the court, this is the first time a judgment of reversal in a case of this charac ter has been treated as a nonsuit, and a suit reinstituted. car ried to judgment and appealed to this court. It is therefore

interesting because of its novelty, if for no other reason. 1 The question must turn somewhat upon our statutory Pm‘ l visions. The various statutes are: Rev. St. 1899, § 639 St. 1906, p. 658) which reads: “The plaintiff shall in

(Ann. l allowed to dismiss his suit or take a nonsuit at any time be fore the same is finally submitted to the jury or to the court ' ..__ sitting as a jury, or to the court, and not afterward.” ' ' 138, St Laws 1905, p. which were enacted in lieu of Rev. I.‘-'-L 1899, § 2868, read thus: “Every action instituted b_v virtue of the preceding sections of this chapter shall be commenced within one year after the cause of action shall accrue: PW vided, that if any action shall have been commenced within _._-"L"_L... the time prescribed by this section, and the plaintiff therein suffer a nonsuit, or, after a verdict for him, the judgment be arrested, or after a judgment for him the same be reversed on appeal or error, such plaintiff may commence a new action from time to time, within one year after such nonsuit suf fered or such judgment arrested or reversed.” "‘ " * The real question is the proper construction of the new set tion 2868 as enacted in 1905, when taken with section 639

Under such sections, in a case where this court has P-‘med

upon both the law and facts of a case and reversed the 11159‘ ment nisi, can the plaintiff bring and maintain a new suit-J1’ brought within the year specified in section 2868? V\’etl1ll1l‘ not, and for reasons which follow. * * * It III Ii 1* * * * Sec. 3] DISPOSITION or CASE UPON Rsvmw 1223

" * * The plaintiff contends that a judgment of reversal is equivalent to a nonsuit. That it amounts to nothing more than a nonsuit, and that a new suit can be reinstituted within a year after such judgment. In th_e Berning Case, 56 Mo. App. 449, Judge Rombauer does say that this court has said that a judgment of reversal was equivalent to a nonsuit, but he cites us to no case, and if it has been so held where the question Was an issue, we have been unable to find the case. Nor is it equivalent to a nonsuit. It is true that at common law the plaintiff could take a nonsuit at any time before ver dict. 14 Cyc. 401. But this rule is modified by our statute, section 639, quoted supra, by which the nonsuit must be taken before the cause is submitted to the jury or to the court. A judgment of reversal comes after a submission. Not only so, but in many cases it comes after an investigation of both law and facts, and after a judicial conclusion has been reached as to the merits of the case under the law and facts. When we consider section 639 along with section 2868, we cannot say that there is any similarity between a nonsuit and a judgment of reversal. Nor can we say, in all cases, that a judgment of reversal is equivalent to a judgment on either a voluntary or involuntary nonsuit. In nonsuits there is no adjudication of the issues involved in the case, whereas in most of the cases wherein the appellate courts simply reverse the case, there has been an adjudication of the issues on the law and facts of the case. There might be cases wherein we could reverse the case without remanding, and yet leave the issues upon the merits untouched. Thus in McQuitty '0. Wilhite et al., 218 Mo. 586, 117 S. W. 730, we reversed the case without remand ing, and yet never passed upon the merits of the case at all. By the first count of her petition the plaintiff, McQuitty, sued the administrators of W. R. Wilhite, deceased, for the value of her services. In the second count, she sued for the specific performance of a contract to convey real estate. The trial court found against plaintiff on the first count, but she failed to appeal. But the trial court found for plaintiff on the second count and the administrators appealed. This judgment we reversed on the ground that plaintiff had sued the wrong parties. In other words, such action should have been against the heirs and not the administrators. We have no doubt in a case like this the plaintiff could sue again, but where upon appeal we examine the facts and apply the law, __ __*______

1224 TRIAL AND APPELLATE PRACTICE [Chap. 10 and reverse the case for the reason that plaintiff upon the merits is not entitled to recover, such judgment of reversal is a finality. It ends the case for all time. 1 l i i I O’ # Q i i In the case at bar, it is not claimed that the plaintiff is re lying upon any new facts, but is relying upon the same facts l facts, she adjudicated in the former case. But if she had new l l has lost her opportunity. She might have asked for a modi 1 fication of the judgment, as such has been permitted in some instances. Thus in Rutledge 12. R. R., 123 Mo., loc. cit. 140. 1 24 S. W. 1063, 27 S. W. 327, this court thus spoke in an opin ion on a motion to modify a judgment of reversal: “On mo tion to modify the judgment, it has been suggested that plain tiff may have a cause of action upon further proof that the 7 signal on which the engineer acted originated with the yard master. Plaintiff hence prays that the judgment be modified I so as to remand the cause; and thus give him an opportunity to amend, and present that phase of the case to the trial court. the statute of limitations having intervened as against any new action he might bring. On consideration of this motion we are of opinion that it should be granted. Bowen '0. Rail road (1893) 118 Mo. 541, 24 S. W. 436; Lilly 'v. Tobbein (1891) 103 Mo. 477, 15 S. W. 618, 23 Am. St. Rep. 887. Ac cordingly, the final judgment of this court will be that the judgment of the circuit court be reversed, and the cause re I manded.” It would appear that both plaintiff and the court in that case understood that the judgment of reversal was a finality, and unless modified no further action could be taken by plain tiff. Other cases of like tenor might be cited. * ll * * $ ll i Q l I 5. A thought or two more and we dismiss the subject, save and except to note some cases outside of Missouri cited by the plaintiff. An examination of our cases shows that we have indiscriminately used judgments of reversal, and judg ments of reversal and dismissal of the petition. For instance, in Gatewood v. Hart, 58 Mo., loc. cit. 265, we disposed of the case, thus: “The judgment is reversed, and as it is evident that a new trial could be of no avail to the plaintiffs, their petition will be dismissed; all the judges concur.” In Rat ledge v. Railway Company, 123 Mo., loc. cit. 137, 24 S. W. 1057, 27 S. W. 327, at the conclusion of the opinions written Sec. 3] DISPOSITION or Cass UPON Rsvmw 1225 in Division 1 we used this language: “We hold that plain tiff’s injuries cannot justly be ascribed to the want of such a rule as their juridical cause; and that the trial court should have given the defendant’s instruction in the nature of a de murrer to the evidence. It follows that the judgment should be reversed (Carroll v. Transit Co. [1891] 107 Mo. 664 [17 S. W. 889] ) , and it is so ordered.” Thus it will be observed that we have reached the same ob ject, i. e., a disposition of the merits of the controversy through different wordings of our opinions and judgments. Other similar instances could be cited but these serve to il lustrate. There can be no doubt that a reversal of the judgment and a dismissal of the plaintiff’s‘petition finally determines the cause. So too may the simple judgment of reversal, if lit ap pear that the merits of the cause were submitted and adjudi cated. What was held in judgment does not always appear from the judgment itself, but may be gathered from the pleadings and whole record of the case. In the case at bar it appears from the plaintiff's petition that we held in judgment at the prior hearing both law and facts, and therefore the merits of the controversy. ' 6. Plaintiff in addition to the cases in this state has cited us the following: Smith v. Adams, 130 U. S. 167, 9 Sup. Ct. 566, 32 L. Ed. 895; Gardner v. Railroad, 150 U. S. 349, 14 Sup. Ct. 140, 37 L. Ed. 1107; Bucher 'v. Cheshire R. R. Co., 125 U. S. 555, 8 Sup. Ct. 974, 31 L. Ed. 795; Spring Valley Coal C0. '0. Potting, 210 Ill. 342, 71 N. E. 371; Railroad v. Bentz, 108 Tenn. 670, 69 S. W. 317, 58 L. R. A. 690, 91 Am.

St. Rep. 763. _ I i i 1 I Q Q I i Q It will be observed that in each of the five cases the judg ment under discussion was one wherein the judgment nisi had not only been reversed, but the cause had been remanded. The cases are therefore absolutely foreign to the question at issue in this case. No one would contend that a judgment of this court which reversed the judgment nisi, and remanded the cause, would be a final judgment. II l It # # # 1! i $ ¥ We shall not consume further time and space. It follows from what has been said that the judgment of the lower court is right and should be affirmed. 1226 TRIAL AND APPELLATE PRACTICE [Chap. 10

It is therefore ordered that the judgment be afiirmed. All concur. .i~ WHALEN v. SMITH.

Supreme Court of California. 1912. _

163 California, 360.

SHAW, J . This is a proceeding to compel the defendant, as judge of the superior court, to render judgment in the matter of the action to determine heirship in the estate of George Roach, deceased, entitled “Martin Whalen et al. v. Joshua B. Webster et al.,” in accordance with the decision of this court on appeal therein, as reported in 159 Cal. 260, 113 Pac. 373. and without taking further evidence upon the issue as to the number of surviving children of Thomas Roach, a deceased brother of said George Roach. The contention of the petitioners is that the appeal in Whalen 1/‘. Webster, supra, was from a part only of the judg ment in the proceeding—a part which presented but one ques tion, namely, whether the language of the will of George Roach gave to the descendants of his brothers and sisters one-half of his estate or only one-fourth thereof; that all other matters determined by the judgment remained unaffected, and are finally adjudicated, and, hence, that this court on said appeal had no jurisdiction to reverse the whole judgment, or any part. of it, except the part appealed from; and that the mandate of reversal, although general in terms, can apply only to the part appealed from. And, further, they claim that, even if the Supreme Court had jurisdiction to reverse the entire judgment on appeal from a part only, yet, in view of the record in the case, the nature of the proceeding, the judgment rendered, and the narrow question presented by the appeal, the general mandate should not be construed to apply to the whole judgment in the proceeding below, but only to that part from which the appeal was taken. There are doubtless cases of appeals from a part of a ju(1g_ mcnt where the part appealed from is so interwoven and con nected with the remainder, or so dependent thereon, that the

I Sec. 3] DISPOSITION or CASE Uron Ravnaw 1227 appeal from a part of it affects the other parts, or involves a consideration of the whole, ‘and is really an appeal from the whole, and if a reversal is ordered it should extend to the entire judgment. The appellate court, in such cases, must have power to do that which justice requires, and may extend its reversal as far as may be deemed necessary to accomplish that end. The Code provides that a party may appeal from a specific part of a judgment. Code Civ. Proc. § 940. Ordi narily such an appeal would leave the parts not appealed from unaffected, and it would logically follow that such unaffected parts must be deemed final, being a final judgment of the facts and rights which they determine. The decisions are to the ef fect that upon such an appeal, where the parts not appealed from are not so intimately connected with the part appealed from that a reversal of that part would require a reconsidera tion of the whole case in the court below, the court upon such partial appeal can inquire only with respect to the portion ap pealed from. Thus, in Early v. Mannix, 15 Cal. 150, it was said that a plaintiff in forcible entry could appeal from an or der denying his motion for treble damages and, in the mean time, enforce his judgment for restitution of the premises. In Pacific Mutual L. I. Co. v. Fisher, 106 Cal. 237, 39 Pac. 758, it was said that the Supreme Court is not at liberty to reviewa part of a judgment which is not appealed from. In Estate of Burdick, 112 Cal. 391, 44 Pac. 734, the court below made a de cree, upon the executor’s petition, settling his final account and making distribution of the estate. He appealed from all of the decree, except the part thereof settling his final account. Upon the appeal he applied to review the order settling the final account; but the court refused to consider the question of its accuracy, saying: “We must not interfere with it. To attempt to do so would be an arbitrary proceeding without au thority.” In Ricketson v. Richardson, 26 Cal. 154, there were several defendants, and one alone appealed. A reversal as to all of the defendants was asked. The error consisted of a de fective service of summons and affected the appellant only. A reversal as to the other defendants was_refused; the court saying that it was bound to presume that there was no error as to them, since they had not taken any appeal. In Kelsey o. Western, 2 N. Y. 505, the court said: “It is \vell settled that only that part of a decree which is appealed from is brought before the appellate court for review.” In Bush v. Mitchell, 1228 TRIAL AND APPELLATE PRACTICE [Chap. 10

28 Or. 92, 41 Pac. 155, the court referring to an appeal from a part of a judgment, quoted the following language from Shook 'v. Colohan, 12 Or. 243, 6 Pac. 503: “The trial of the suit anew would be confined to a trial of the case affecting the part of the decree specified in the notice of appeal.” In that state the appellate court had power to try the suit anew. The following cases recognize and apply the general principle that an appeal from a distinct and independent part of a j udgment does not bring up the other parts for review in the appellate court, and that a reversal of the part appealed from does not affect the portions not dependent thereon, but that they will stand as final adjudications: Ilcerd v. Postlewhaite, 34 La. Ann. 1235; Nelson 12. Hubbard, 13 Ark. 253; Scutt’s Appeal, 46 Conn. 38; Ervin v. Collier, 3 Mont. 189; Hess v. Winder. 34 Cal. 270; Sands '0. Codwise, 4 Johns. (N. Y.) 602, 4 Am. Dec. 305; In re Davis’ Estate, 149 N. Y. 548, 44 N. E. 185; Leavison v. Harris (Ky.) 14 S. W. 343; Meadow, etc., Co. 1:. Dodds, 6 Nev. 261; Robertson v. Bullions, 11 N. Y. 245; Moerchen v. Stall, 48 Wis. 307, 4 N. W. 352. This principle is decisive of the case. If the decree ap pealed from in Whalen 'v. Webster had been a decree distribu ting the estate, it might plausibly be argued that the distribu tion was the final judgment, and that the decision as to the persons who are the heirs at law was a mere finding of fact, upon which the final judgment followed as matter of law, in which case a general order of reversal would open the Whole matter for a new trial as to the facts. But that proceeding was instituted under section 1664 of the Code of Civil Pro cedure. This section provides a special proceeding for the purpose of ascertaining and determining, in advance of dis tribution, the persons who have succeeded to the estate and the portions inherited by or devised to each of them. Upon the trial thereof, the court must “determine the heirship to said deceased, the ownership of his estate, and the interest of each respective claimant thereto or therein, and persons en titled to distribution thereof.” No other judgment is to be rendered, and no disposition whatever is to be made of the estate. It is a determination, first, of the persons entitled as heirs, devisees, or legatees, or as their successors, if any have died; and, second, the interest of each one in the estate of the decedent. The will of George Roach gave an interest in his estate, af —il Sec. 3] D1sPosrr1oN or CASE UPON REVIEW 1229 ter the death of his wife, to be equally divided among his brothers and sisters or their descendants. The petition of Whalen and others, plaintiffs in the ‘proceeding, alleged: First, that the decedent had only one brother and one sister, both of whom were dead, and that plaintiffs were the only de scendants; and, second, that, as such, they were entitled to one-half of the estate under the will. The heirs and success ors of the widow of the decedent appeared and answered, de nying that plaintiffs were descendants of the brother and sis ter, and claiming that they, as heirs and successors of the widow, were entitled to succeed to three-fourths of the estate. The judgment therein declared, first, that the plaintiffs were the devisees and heirs at law of Roach, the descendants of his brothers and sisters referred to in his will and the persons entitled to take as devisees under his will; second, that each of them was entitled to a specific interest, the aggregate of all of them being only one-fourth of the estate; and, third, that certain named defendants, as successors of the widow, were entitled to the remaining three-fourths. There is nothing in the record to indicate that there was any claim that there were other descendants of the brothers and sisters. The prin cipal dispute was upon the question of law whether the fourth clause of the will gave the plaintiffs one-half of the estate or only one-fourth thereof. The plaintiffs appeal only from that part of the judgment which declared that they were entitled to take only one-fourth, and that certain defendants were en titled to three-fourths of the estate. No appeal was taken from the part declaring that the plaintiffs were persons en titled, as descendants of the brother and sister, to take as devisees under the will. The question whether or not said brother and sister left other descendants, and whether or not there were other brothers and sisters, was in effect deter mined in the negative by the judgment. The plaintiffs were satisfied with that determination, no one appeared to dispute or question it, and its accuracy was not reviewed, considered, or discussed by this court in its opinion on the appeal; nor was it presented for review by the record. The only question discussed or decided was whether the fourth clause disposed of one-half of the estate or one-fourth thereof. The decision was that it gave one-half, and the judgment on that subject was accordingly reversed. The mandate did not go into spe cific particulars, but consisted simply of the words, “The 1230 TRIAL AND APPELLATE PRACTICE [Chap. 10 judgment is reversed.” The part of the judgment appealed from determined no question of law, except the proper con struction of the will. No question of fact was involved in the appeal. The determination of the construction of the will did not require any inquiry concerning the persons who were en titled as members of the class described as descendants of the brothers and sisters of the decedent. The court was therefore without authority to consider the latter question, and it did not make any attempt to do so. In view of these considera tions, the words of the mandate should be understood and construed to refer only to the part of the judgment appealed from—the part which the Supreme Court had jurisdiction to review—and to reverse that part only, without affecting the other parts not specified in the notice. It follows that the court below has no authority to retry the question whether there were other descendants of the brothers and sisters than those included in the decree previously rendered. The de cision left no matter of fact to be determined, and the only duty of the court below upon the going down of the remitt-itur was to enter judgment in the proceeding in accordance with the facts previously found and with the decision of the Su preme Court on appeal. It is therefore ordered by the court that a writ of mandate issue, directing the superior court of San Joaquin county to enter judgment in the proceeding of Whalen v. Webster upon the facts found in accordance with the opinion of the Supreme Court, and without proceeding to retry any issues of fact de termined upon the former hearing in that court. We concur: BEATTY, C. J.; ANGELLOTTI, J.; SLoss, J.; LORIGAN, J. HENSHAW, J. I dissent. The power of this court to re verse the whole of a judgment, when a part only has been ap pealed from, is conceded by the prevailing opinion to exist. The judgment delivered by this court in Whalen v. Webster, 159 Cal. 260, 113 Pac. 373, is in the following language, “The judgment is reversed.” Language so plain and so free from ambiguity neither requires explanation nor permits construc tion. It either means what it says, or it means nothing. It follows, therefore (the power of the court so to do being con ceded), that this court deliberately reversed, not a part, but the whole, of the judgment appealed from; for, as is said in Glassell_~v. Hansen, 149 Cal. 511, 87 Pac. 200, where a similar Sec. 3] DISPOSITION or CASE UPON REVIEW 1231 question was presented: “In reversing the case, this court might have directed what issues should again be tried, and what should be deemed finally settled by the first trial; how ever, it did not do so, and the judgment was merely in the general terms, ‘The judgment and order are reversed.’ This clearly left the whole case to be tried anew, as if it had not been tried before. Falkner 12. Hendy, 107 Cal. 54 (40 Pac. 21. 386).” In Cowdery v. London, etc., Bank, 139 Cal. 298, 73 Pac. 196, 96 Am. St. Rep. 115, this court, in effect, refused to put any construction upon a judgment such as the one here under consideration, or to attempt to modify its plain mean ing in any way. The judgment of this court in the Cowdery Case was: “The judgment * * * is reversed and the cause remanded, with directions that the trial court enter judgment in accordance with the views here expressed.” Says this court: “The legal effect of the order of the Su preme Court was to reverse and vacate the judgment, and not merely to modify it. Upon a decision of the Supreme Court that there was material error in the action of the court be low, that court may direct the character of the subsequent proceedings in the lower court, and its mandate will vary ac cording to its views as to the proper course to be pursued. It may conclude not to reverse the judgment, but to modify it, by eliminating some portion, or by adding something to it, leaving the remaining part of the judgment below to stand afiirmed and in full force and effect from the date of its origi nal entry 01' rendition; or it may reverse the judgment, which means to entirely vacate it, and may remand the cause for a new trial; or, if a new trial is not necessary, it may upon the reversal remand it, with directions to the lower court to enter ' a particular judgment.” What this court is here doing is changing in essential par ticulars a judgment which it hassolemnly given, which judg ment by lapse of time has passed from its control and become an absolute finality. It is doing this under the guise of con struing language so plain as to forbid construction. The di rect consequence, the legal effect, of this is to impair, without warrant of law, the stability and security of every judgment which this court has rendered. If this court in one case can say that its formal decree reversing the whole of the judg ment of a trial court means merely the reversal of some por tion of that judgment, it may say so in any case. 1232 TRIAL AND APPELLATE PRACTICE [Chap. 10

The judgment which this court rendered in 159 Cal. 260, 113 Pac. 373, was either mistaken or not mistaken. If it was not mistaken, there is no need for its correction. If it was mistaken, this is not a legal method for its. correction. Nothing but hopeless confusion in the law and a just contempt for the law can follow, if its highest interpreters, under-con~ ditions such as those here present, shall be permitted to say that their own deliberately chosen language does not mean that which alone the words must mean to any comprehending l mind. I therefore dissent under the conviction that the pre -I vailing opinion and judgment are not alone without the sanc tion of the law, but are a dangerous innovation upon the law. l _-l‘nl- I concur: MELVIN, J."

as “Where a decree is jointly binding on several defendants, so that each is liable for the whole, a. reversal on the appeal of one defendant vacates the same as to all the defendants; but when the decree, in form. is joint, but is several in its effect, it may be reversed as to a part of the defendants."—Sy1la.bus in Pittsburgh, Fort W. 8: C. Ry. C0. v. Reno, (1887) 123 Ill. 273.

DONNELL v. WRIGHT.

Supreme Court of Missouri. 1906.

199 Missouri, 304.

[Donnell brought an ejectment suit in the circuit court against Wright and others, and defendants obtained a judg ment on the ground of fraud in connection with Donnell's deed. On appeal the judgment was reversed on the ground of res adjudicata, it being contended that the issue of fraud was determined in Donnell’s favor in the prior suit of Lynch v. Donnell, 104 Mo. 521. But although the supreme reversed, it did not expressly remand, the following clause being shown on the record to have been erased from the usual form of mandate: “That the said cause be remanded for further pro ceedings to be had in conformity with the opinion of the court herein delivered.” Three years later, on the theory that the case was pending in the circuit court, Donnell undertook by scire facias to revive the proceedings against the heirs and executors of one of the defendants who had died.]

r,_--:43-1" Sec. 3] DISPOSITION or CASE UPON REVIEW 1.233

LAMM, J. "' * * * * * An order was made that said heirs and representa tives appear and show cause. They did appear, and filed a re turn or pleading to- the writ of scire facias, wherein (for cause) it was alleged: First, that the suit was not pending in that court, judgment having been rendered therein, from which plaintiff appealed; that the judgment was simply re versed, and the cause was not remanded. "‘ * "' To the foregoing return plaintiff filed a plea, admitting the judgment was reversed by this court, but denied the cause was not re manded, and alleged that, in law and in fact, it was remanded, and is now properly and legally pending in the circuit court of Jackson county. * "‘ ' The trial court, “ “ * ad judged as follows: “Therefore the court doth hold that plain tiff was not entitled to have his suit as revived, and doth find and adjudge that the same be not revived, and the plaintiff take nothing by his suit.” Defendant’s learned attorney "‘ " * seeks to sustain the lower court on the theory the cause was not pending in that court at the time the writ of scire facials was sued out, and was not so pending because this court did not award a new trial and remand the cause for further proceedings. Plaintiff's learned attorney insists that the reversal of the judgment in favor of defendants ipso facto, as a matter of law, without more, itself operated as a remanding of the cause, a procedendo under an award of a new trial, and that the circuit court thereby become possessed of jurisdiction to go on and try’ the case anew. The foregoing contentions of counsel call for an adjudication of the effect and office of a formal award of a new trial, with a remanding of a cause for further proceedings in the lower court, and the single ques tion presented may be stated in this way: If a circuit court loses jurisdiction of a case on its merits, by an appeal from its judgment, does it regain jurisdiction of the case on its merits by a mere reversal here without an award of a new trial and a remanding? Theexact point, to wit, the effect of a reversal of defend ant’s judgment on appeal by plaintiff without remanding, seems new, while the kindred question, viz., the question of a reversal without remanding of plaintiff's judgment on de fendant’s appeal, is not new. The right of appeal being a creature of statute, the duties and powers of appellate courts 1234 TRIAL AND APPELLATE PRACTICE [Chap. 10 on appeals in Missouri are referable to the same source. Looking thereto, we find the duty of such court in cases on appeal is to “examine the record” and, first. “award a new trial,” or, second, “reverse,” or, third, “affirm the judgment or decision of the circuit court,” or fourth, “give such judg ment as such court ought to have given.” or as to this court “shall seem agreeable to law.” Rev. St. 1899 § 866; Laws 1903, p. 105. Each one of these four duties is a separate and distinct step, though it is obvious that award of a new trial and a reversal go together as twin steps to be taken on the same appeal. If, for instance, a new trial is awarded, the judgment below is also reversed in order that a new trial be had; but a reversal may be an independent step, complete in itself, and not to be followed by a new trial. So, too, it is ap parent that, in awarding a new trial, it may be on the whole case or on a certain issue, or a new trial may be awarded, with directions to eliminate pointed out errors, or to try the case on a certain theory of the law, or with the exclusion or inclusion of certain evidence; the award adjusting itself to meet the ends of justice. But it will be observed that in what ever form it be made, whether with or without directions, yet the statute contemplates it should be made, and also that the judgment, standing in the way of a new trial, should be brushed aside by reversal in order that one be had. Take a case: A. sues B. and recovers; but his judgment was the product of erroneous instructions, or improper evi dence commingling with proper evidence. On that account the judgment is reversed here on appeal. In such case the clear duty of this court, consistent with the inherent common sense of the thing, was to award a new trial and remand for further proceedings. But this court inadvertently neglected to do so—reversing only, without remanding. In the sup posed case there was no reason under the sun why the case should not have been remanded, as well as reversed, so that it might have been followed in subsequent proceedings below to a finality. Take another case: C. sues D., and D. has judg ment against C. C. appeals, and secures a reversal'of the judgment against him without remanding. In that case there was no reason under the sun why the case should not have been remanded so the circuit court could proceed with a new trial to a finality. But the entry was not made. Now, while in other supposable cases the reversal of a judgment in favor

__ '-I _ L-_.n_ Sec. 3] DISPOSITION or CASE UPON Rnvn-zw 1235 of a plaintiff might stand on a footing to itself; a footing en tirely distinct in principle from the reversal of a judgment in favor of a defendant; yet in the two hypothetical cases of A. v. B. and C. v. D., we fail to see why they do not stand on the same footing; and, if the court may not proceed below to a new trial and judgment in A. v. B., because jurisdiction was not handed back, by the same token the court below should not proceed in the case of C. v. D., unless jurisdiction was handed back by this court. \ Let us approach the case from another standpoint. At common law, where a case came up on a writ of error, it was the custom to hand back jurisdiction,‘ if at all, by an entry and a mandate called a “procedendo,” or a “venire facias cle novo,” or a “remittitur of record.” Now, from the institu tion of this court down to the present hour, for 85 years, the same end has been attained by awarding a new trial, and reversing and remanding the case, where defendant’s judg ment was not allowed to stand. Thus, in Edwards v. McKee, 1 Mo. 123, 13 Am. Dec. 474, decided here at the October term, 1821, Edwards and another sued McKee, and the jury found for defendant. Thereupon the plaintiffs appealed, and the case was sent below for a new trial on the following entry: “Let the cause bel remanded to the circuit court for a new trial of the issue made on the first count in the declaration, not in consistent with this opinion.” From that case until Matlock v. Wil., G. & St. L. Ry. C0. (not yet officially reported) 95 S. W. 849, decided here June 19, 1906, wherein a judgment in favor of defendant was reversed, and the cause was remanded, there has been deemed a necessity for a uniform use of appro priate phraseology which (in some plain form) grants a new trial, and reverses and remands the cause, before the trial court may go on. We are now asked to hold that, in the ab sence of entry of such judgment here, with a formal mandate remanding the cause, the trial judge may (or must) read our opinion and judgment entry, and if he concluded, on the rea soning of the opinion, the cause should have been remanded by this court, or, to put it another way, that it was the clear duty and intention of this court to remand the cause, but by slip it failed to do so, then the trial court thereby became possessed of jurisdiction to proceed de novo. If this be the law, then to the perplexing troubles now awaiting on a nisi prius judge there is added a new‘ train of vexations hitherto 1236 TRIAL AND APPELLATE PRAcTIcE [Chap. 10 beyond the ken of his philosophy—vexations which, putting the boot on the wrong foot, lays upon him the duty of correct ing (by avoiding the effect of) our errors, as we do his. Hitherto, while a court nisi has been charged with the duty of reading our opinion into the mandate, where the cause is reversed and remanded to be tried in accordance with such opinion, yet he has been relieved from any duty of laboriously ascertaining by induction or deduction whether or not the cause has been sent below for further proceedings; for that fact has been set forth in our judgments and mandates in un mistakable terms, so that one who runs may read. Should we unsettle the practice, and now hold that a cause is reversed and remanded, not because our judgment and mandate say so, but because they should have said so, and by such holding take a step to one side of the beaten path? l We think not. * "‘ * - * "‘ * It cannot be doubted, moreover, that during the term this court holds in its breast its own judgments, and, on a suggestion of error, it may recall its own mandate and see to it that its judgment is amended so as to conform to its opin ion. A judgment is the application of the law to the facts found, “the sentence of the law upon the record,” the deter mination of the cause, the act of the whole court to effectuate the reasoning and findings of the opinion. If, through slip, our judgment be faulty, why may it not be corrected by a nunc pro tune entry on seasonable application? In a lawsuit one must certainly watch, and, withal, may profitably pray. When, therefore, this court, on the appeal of plaintiff, re versed a judgment for the defendants, it should have re manded the case for a new trial; but when it did not the bur den was on Donnell to be alert, and to come here betimes and pray us to correct our judgment and mandate. This he failed to do, sleeping on his rights for three years in a slumber so profound as to be likened (in figure) to that of Rip Van Winkle, or to that in which our great ancestor lost a rib (thereafter reconstructed in another and much more desirable form). * # I # Q # 1 1 l I Because there was no jurisdiction in the court below to try the case at bar, the judgment of the circuit court on the issue ;7 Sec. 3] DISPOSITION or CASE Upon Review 1237 raised on the scire facias and return was right, and is there fore affirmed."

39 Some cases take a contrary view. Thus in Becker v. Becker, (1878) 50 Ia. 139, it was held that the reversal of a case which is retriable below restores the case as pending there. In Benzinger Twp. Road, (1890) 135 Pa. 176, it was held that a case properly requiring further proceed ings should be taken up again atter reversal, notwithstanding the failure oi’ the supreme court to award a procedendo, but the court calls attention to the tact that its own opinion on reversal indicated the necessity of further proceedings. In Gerard v. Gateau, (1884) 15 Ill. App. 520, the voluntary appearance ot the defeated party in the court below after an aifirmance of a decree dissolving an injunction, was held to be a waiver of a remanding order to assess damages, in view of a statute making it the duty of the court to assess damages after the dissolution oi any injunction. Reversals may be self-executing in their nature so as to require no order of remand to authorize the trial court to go on with the case. See Woodrut! v. Bacon, (1868) 35 Conn. 97, where an order striking a cause from the flies was merely reversed, and it was held that this was enough to reinstate the case tor trial below, without a remanding order.

(g) Final Judgment or Remand.

FIELDER v. ADAMS EXPRESS CO.

Supreme Court of Appeals of West Virginia. 1911.

69 West Virginia, 138.

POFFENBARGER, J. Fielder & Turley brought this action against the Adams Express Company, in a justice’s court, to recover the value of certain goods shipped to them over said company's line from New York and lost. In that court they recovered a judgment for $111.30. The defendant took an appeal to the intermediate court of Kanawha county. There a jury was dispensed with, and the case submitted to the court on a statement of facts agreed to, and a judgment was ren dered for $114.55, with damages according to law. To this judgment the circuit court of Kanawha county awarded a writ of error, on which it was reversed and the case remanded to the intermediate court for further proceedings and final de termination. Complaining of this, Fielder & Turley procured a writ of error from this court to the judgment of the circuit court, on which * * * the remand of the case to the inter 1238 TRIAL AND APPELLATE PRACTICE [Chap. 10 / mediate court, and reversal by that court are assigned as grounds of error. * * * The circuit court erred in refusing to retain and finally de cide the case, and in remanding it to the intermediate court. As it was fully made up and could not be in any respect changed, since the facts had been agreed, there was no reason for remanding it, and we think final judgment should have been rendered. Though section 21 of chapter 25 of the Acts of 1907 says “the circuit court may retain the case for trial or remand the same back to the said intermediate court to be further proceeded in and finally determined,” these general terms must be so construed as to make them operate reason ably and justly. It must be assumed the Legislature did not intend a useless and detrimental proceeding. After an ap pellate court has ascertained what judgment should have been rendered- in a case fully made up, a remand for judgment in volves both delay and risk of additional error as well as double work. Hence it is an idle. useless, and injurious proceeding, which the Legislature cannot be deemed to have intended, if the clause quoted can perform some other substantial purpose or function. While some effect must be allowed to all words in a statute, or other writing, if possible (State '0. Harden, 62 W. Va. 313, 58 S. E. 715, 60 S. E. 394), it is not always neces sary nor proper to allow them effect to the full extent of the letter thereof (Coal & Coke Ry. C0. 'v. Conley, 67 S. E. 634). It is improper to do so, if such construction leads to an absurd or unjust result. Hasson v. Chester, 67 S. E. 731; B. & L. Ass’n v. Sohn, 54 W. Va. 101, 46 S. E. 222. Words may be re ferred to their proper connections, giving each in its place its proper force, in seeking the legislative intent. B. & L. Ass’n v. Sohn, cited. Reversals take place in two well-known gen eral classes of cases, one in which new jury trials must take place, or additional evidence be heard, or further orders made to carry the judgment or decree into effect, and one in which none of these things are necessary. In the former class the cases are remanded, under general appellate law, and, in the latter, finally disposed of in the appellate court. The classifi cation and usual mode of disposition were, we must assume, known to the Legislature, and it has dealt with both in very general terms. Power to remand in both involves idle, use less, and practically absurd action or procedure. Hence we may~iwell say, “1'eddendo singula singulis,” under the rule de . »

Sec. 3] DISPOSITION or Cass Urou REVIEW 1239

clared in B. & L. Ass’n v. Sohn, the power to remand is ap plicable to the former class and the power of retention to the latter. Whether the act confers power to retain all cases we do not say, that question not being involved, but we are clear ly of the opinion that the circuit court must act finally in com plete cases, requiring nothing other than the rendition and entry of judgment. -r##o\#=o==|=*=r#4o

40 A final judgment for damages will be rendered by the appellate court where the amount is fixed by statute,——Hink v. Sherman, (1911) 164 Mich. 352; or is undisputed,—Moore v. Calvert, (1899) 8 Okl. 358; Lacey v. O. R. & N. Co., (1913) 63 Ore. 596. Where special findings cover all the issues, an erroneous judgment entered thereon will be reversed but the case will not be remanded for a new trial, but final judgment will be entered or directed,—Fort Scott V. Hickman, (1884) 112 U. S. 150. So, where a judgment is erroneously entered contrary to the verdict upon answers to special interrogatories, it will be reversed and final judgment ordered on the verdlct,—Brown v. Ohio & Miss. Ry. Co., (1894) 138 Ind. 648. But where it did not afilrmatively appear that upon a new trial the plaintiff might not be able to show a liability, the case was reversed and remanded for a new trial,—Fuller v. Mining Co., (1908) 64 W. Va. 437. In Guernsey v. Miller, (1880) 80 N. Y. 181, the court said: “It is not sufiicient that it is improbable that the defeated party can succeed upon a new trial; it must appear that he certainly cannot, to justify an appellate court in rendering a final judgment against him.” Where there are material issues which have not been passed on a new trial, partial or entire. is the proper practice.—Phelan v. Quinn, (1900) 130 Cal. 374; Cullinane v. Bank. (1904) 123 Ia. 340; Bryan v. Straus Bros. Co., (1909) 157 Mich. 49. Remamling for partial new trial. The right to remand for a partial new trial involves the same principles as the granting of a partial new trial by the trial court. See Simmons v. Fish, (1912) 210 Mass. 563, given in the text supra. ;~

ARHELGER v. MUTUAL LIFE INSURANCE CO.

Supreme Court of Arizona. 1899.

6 Arizona, 245.

SLOAN, J . This cause has for the third time been before this court on appeal. At the January, 1894, term the cause was reversed, and remanded to the court below for a new trial. 36 Pac. 895. Upon the second appeal the cause was reversed, and remanded to the court below with | *~

1240 TRIAL AND APPELLATE PRACTICE [Chap. 10 instructions to enter its judgment in favor of the Mutual Life Insurance Company of New York, appellee here. No opinion was filed by the court upon this second appeal. From the judgment entered in accordance with the mandate of this court, issued under the latter judgment, appellant has again appealed. It is contended by appellant that this court has no power to reverse a cause without rendering a written opinion, or, upon reversal, to direct the-lower court to enter a judgment without awarding a new trial. Upon the first contention, it is sufficient to say that paragraph 948, Rev. St., provides that “the opinion in all cases which are reversed and re manded for a new trial, shall be in writing." So that, even were this section to be regarded as mandatory and jurisdic tional, inasmuch as the judgment of this court on the second appeal reversed the cause, without remanding it for new trial, the statute does not apply. The purpose, doubtless, for requiring the written opinion in any cause that is re versed and remanded for new trial is that the trial court may be apprised of the rulings of the appellate court, and be guided thereby upon the subsequent trial. We may add, however, that we see nothing in the statute which makes the filing of an opinion in any case a jurisdictional pre requisite to the entering of a valid and enforcible judgment. Upon the second contention, paragraph 949, Rev. St.,'pro vides that, “when the judgment or decree of the court below shall be reversed, the supreme court shall proceed to render such judgment or decree as the court below should have rendered, except when it is necessary that some matter of fact be ascertained or the damages to be assessed or the matter to be decreed is uncertain, in eitlrer of which cases the cause shall be remanded for a new trial to the court below.” Under this section this court is granted full power to enter its own judgment upon the reversal of the cause, unless a new trial be found necessary or proper in order that material facts affecting the judgment may be deter mined. Appellate -courts have almost uniformly favorably regarded the practice of directing the trial court to enter the judgment which the appellate court finds should be ren dered. This practice amounts to nothing more, in effect, than sending a case down for the trial court to enforce and carry out the judgment or decree of the appellate court. We Sec. 3] DISPOSITION or Cxsa Uron Ravnaw 1241 do not regard, therefore, section 949 as prohibiting this prac tice, nor do we construe it otherwise than as directory. That this is the proper construction is indicated by the provisions of paragraph 951, Id., which requires the issuance of a man date on all judgments rendered by this court, and also by paragraph 953, which requires that every judgment of this court shall be certified down to the clerk of the court below to be attached to the judgment roll, and a minute of which is required to be by said clerk entered on the docket. These provisions of the statute would appear to be without mean ing or utility if the judgment of this court may not be en forced and carried out by the process of the trial court. We think this court had ample power to enter the judgment it did on the second appeal, and to direct the trial court to enter judgment in accordance with the order of this court. The judgment is therefore~.affirmed. GILLEY v. HARRELL.

Supreme Court of Tennessee. 1907.

118 Tennessee, 115.

SANSOM, Special Judge. The complainant, A. T. Gilley, appeals to this court from the decree of the Court of Chan cery Appeals dismissing his bill. The original bill in the case was filed in the chancery court at Murfreesboro to col lect a note for $300 alleged to have been executed by the defendant J. R. Harrell to one Robert B. Meeks, and by Meeks transferred and assigne_d to the complainant, and seeking to foreclose a mortgage or deed of trust given to secure the payment of the note and to set aside a previously executed trust deed resting upon the property. # 1 1 1 # 1 i 8 1 8 The third and fourth assignments of error, which go to the point that the Court of Chancery Appeals was in error in not having remanded this case for further proof, or, at least, dismissed the bill without prejudice, may be treated together; and upon this subject the Court of Appeals say: “As a petition to remand the case for further proof or to 1242 TRIAL AND APPELLATE PRACTICE [Chap. 10

dismiss it without prejudice, we have to say that this is not, in our opinion, a proper case for this course to be pur sued, for two reasons: (1) Under the undisputed facts as sworn to by the complainant himself, we think he could not recover, because he had not paid the revenue license author izing him to deal in notes. (2) Because, on the question as to whether or not he was an innocent purchaser, under our view of the law, he could not be an innocent purchaser, because the note was not, under the law as it now stands, a negotiable note, and therefore he necessarily took the note affected by all the equities that existed between the orig inal parties. This part of the case could not be changed by any proof that could be introduced, if the case were re manded or a new suit were brought. (3) It is not proper to remand a case, nor to allow it to be dismissed without prejudice, on the issue of there being no consideration for the note, because this was one of the principal issues, plainly formed and stated in the pleadings, and upon which the case was fought out. The defendant, in his answer, ex pressly stated that the note was without consideration, and positively swore to this fact; and this statement was not overcome by any evidence offered on behalf of the com plainant. There was a statement by complainant himself that there was a consideration for the note; but this was excepted to, and counsel's attention was plainly called to the point, and no better evidence was offered. It will not do to remand cases for new trial on an issue that had been clearly made and fought out by the parties. If this was done, there never could be an end to litigation.” Under the findings and statement of facts by the Court of Appeals, we quite agree with that court in the conclusion it has reached upon this branch of the case, and overrule the third and fourth assignments of error. * 1 III * Q # ll! # # #41

41 Where the parties have fully presented their whole case, and it is

legally insufficient to warrant a judgment for the plaintiff, final judgment for defendant will be rendered upon reversal of plaintifi‘s judgment,-— Sanford v. Herron, (1900) 161 Mo. 176; Hutchinson v. Sperry. (1913) 158 N. Y. App. Div. 704; Wetherby's Adn1’r v. Twin State Gas. Co., (1910) 83 Vt. 189; Lefilngwell v. Miller, (1905) 20 Colo. App. 429; Brillion Lum ber Co. v. Barnard, (1907) 131 Wis. 284.

So, where, in a negligence case, a verdict for plaintiff is supported by no evidence of negligence on defendant's part,——R.obins0n v. Tower Co., Sec. 3] DISPOSITION or CASE UPON Rsvnzw 1243

(1910) 204 Mass. 191; Arlington Hotel Co. v. Tanner, (1914) 111 Ark. 337. Where the evidence conclusively shows a defense to plaintiffs action, final judgment will be entered for defendant upon reversal of plaintiff's judgment,—Fisher v. Radford, (1908) 153 Mich. 385.

FOSSETT v. TURK.

‘Supreme Court of Alabama. 1911.

171 Alabama, 565.

SOMERVILLE, J . The bill of complaint was filed by the ap pellant for the enforcement of a vendor’s lien on certain land. The appellees set up in their answer that they were subvendees and bona fide purchasers for value as to a one half interest in the land without notice of the original ven dor’s lien for unpaid purchase money. The testimony shows conclusively the existence of a lien for unpaid purchase money in favor of the appellant upon the entire interest as against the appellees’ vendors. It therefore devolved on the appellees, in order to avoid the lien, to affirmatively show, among other things, that they had not only purchased their interest for value, but that they had actually paid value therefor before they had any notice of the lien. Buford v. McCormick, 57 Ala. 428; Masterson v. Pullen, 62 Ala. 145. The testimony shows clearly that appellees purchased and took title without notice of the lien, but there is nothing to show that they paid anything of value therefor. It is ele mentary law that the recitals of the deed are not even prima facie evidence of such payment as against a remote vendor. Buford v. McCormick, 57 Ala. 428. Nor do the several state ments in the testimony of the appellee W. P. Turk that he “purchased” or “traded for” the land even tend to supply the missing element. The decree of the chancellor was there fore erroneous in limiting the enforcement of the lien to a one-half interest in the land, and must be reversed. It is in sisted for the appellant that this court in reversing should also render the decree which the chancellor should have ren dered on the testimony before him. In cases like the present it is always in the discretion of this court to either render or remand, and there are numer 1244 y TRIAL AND APPELLATE PRACTICE [Chap. 10 ous cases in which upon reversal a final decree has been here rendered. Gulf Coal & Coke C0. v. Appling, 47 South. 730; Ansley 12. King, 35 Ala. 2'78; Gentry v. Rogers, 40 Ala. 442, 450; Williams '0. Barnes, 28 Ala. 613; Edwards 12. Ed wards, 30 Ala. 394; Flake v. Day, 22 Ala. 132; McKinley ‘U. Irvine, 13 Ala. 681. These cases indicate that the policy of rendering a final decree without remandment is based upon the fact that the ground of reversal was specially brought to the notice of the appellee in the court below, or that re mandment could not benefit the appellee unless he were al lowed to amend his bill or pleadings in the court below, thereby making a new case, or for some similar and sulfi cient reason. In some cases this court has simply dismissed a bill without prejudice to the complainant so as to preserve his cause of action if any he had. Munchus v. Harris, 69 Ala. 506, 510. As a general rule, the discretion of courts should be so exercised as to advance justice and right, and not to promote their miscarriage. In the present case, we infer from the record that counsel for appellees simply over looked the matter of making direct proof of a valuable pay ment, and that most likely the omission was not pressed upon the chancellor's attention before he rendered his decree. While, therefore, our action in this case is not to be taken as a pledge of indulgence for the ordinary derelictions of counsel, we think the cause should be remanded for further proceedings under the orders of the chancellor. The costs of this appeal will be paid~by the appellees. Reversed and remanded."

42 See Allen v. Parmalee, (1906) 142 Fed. 354, 73 C. C. A. 402, where the court was unwilling to refuse a. new trial even though the appellees had an opportunity to put in their whole case but chose rather to rely upon their motion tor the direction ot a verdict in their favor.

I: '\ lie. ~ . Sec. 3] DISPOSITION or CASE UPON REVIEW i245

BENEDICT v. ARNOUX.

Court of Appeals of New York. 1898.

154 New York, 715.

[One William Campbell died seized of certain property known as No. 64 S. 5th Ave., in New York City. His executors were given a power of sale but not power to mortgage. They conveyed the property by a deed absolute on its face to George T. Arnoux, the defendant, who mortgaged it 'to the plaintifi"s testator Booth. This action was brought to fore close this mortgage given by Arnoux to Booth. There was evidence on the trial tending to show that the deed from Campbell’s executors to Arnoux was only a. mortgage and had been made in the form of a deed in order to evade the provisions of the will, and it was claimed that since Booth’s agent knew these facts, Booth obtained no title under his mortgage. The trial court found that the transaction was an actual sale and decreed foreclosure.] HAIGHT, J. * * * The appellate division reversed the judgment, both upon the law and the facts, and directed final judgment for the defendants. It does not appear from the record that that court assumed to make any findings of fact; but it does ap pear from.the opinion filed that the conclusion was reached that the deed from the executors to George T. Arnoux was intended and understood to be a mortgage. It is now con tended that the case comes before this court with all the issues of fact raised by the pleadings found in favor of the defendants, and that the sole question left for the determina tion of this court is whether, upon the facts so found, the determination of the appellate division is erroneous. We cannot assent to this proposition. The power of the appel late division to reverse upon the facts is limited to cases in which the findings of the trial court are unsupported by testimony, or are made against the weight of evidence. Where the findings of the trial court are in accordance with the conceded facts or the uncontroverted testimony, the appel late division is not authorized to reverse upon the facts; and, if it does, a question of law is presented which this court may properly review. Otten v. Railway Co., 150 N, Y. 395-400, 1246 TRIAL AND APPELLATE PRACTICE [Chap. 10

44 N. E. 395. The appellate division may reverse or affirm wholly or partly, or may modify, the judgment appeale‘ from, and may, if necessary or proper, grant a new tria'. Code Civ. Proc. § 1317. But we think in this case the appe' late division had no power to order final judgment; that, in case it saw fit to reverse, its duty was to order a new trial. The deed was absolute in form, and it could only be found to be a mortgage where such was intended to be ‘its force and effect. This intention had to be determined from the oral testimony of the witnesses. Evidence was given tending to show that it was the understanding of the parties that, after the money had been obtained from Booth, the premises were to be redeeded to the executors; but this evidence was sharply converted, and the trial court found for the plain tiifs upon this issue, and it cannot now be said that other evidence may not be found which will sustain the plaintiffs’ contention in the event of a new trial. It is one of the fundamental principles of our law that questions of fact are to be tried and determined in a court of original jurisdiction, and it is not the appropriate func tion of an appellate court to determine controverted ques tions of fact, and render final judgment upon such deter mination. It is only in cases where the facts are conceded or undisputed, or are established by official record, or found by the trial court, that such a court is justified in awarding final judgment. This subject was considered in the case of Edmonston '0. McLoud, 16 N. Y. 543, in which it was held that when a verdict or the report of a referee for the plain tiff is set aside upon a case, and it appears that no possible state of proof applicable to the issues will entitle him to judgment, the appellate court may render final judgment for the defendant. This rule has been followed in analogous cases, such as King 12. Ba./mes, 109 N. Y. 267-282, 16 N. E. 332; Brackett v. Griswold, 128 N. Y. 644-648, 28 N. E. 365; Fischer 2». Blank, 138 N. Y. 669, 34 N. E. 397. In the case of Schenck '0. Da-rt, 22 N. Y. 420, Comstock, C. J., says: “Under the former system of procedure, where a judgment in an action at law was reversed upon writ of error, a venire do no/vo, or new trial, was always granted. In equity causes. on the other hand, the appellate court, if it reversed the decree appealed from, proceeded to make a new and com i~plete adjudication, such as the pleadings and proofs inithe Sec. 3] DISPOSITION or CASE UPON REVIEW 1247 cause warranted and required. According to the new code of practice, actions at law and suits in equity are no longer distinguishable as such; and the question has several times arisen as to the power and duty of an inferior appellate court where the judgment reviewed is reversed. We have followed the analogy of the practice in legal actions, and have determined that in such cases a new trial must be granted, unless, indeed, it is apparent, in the very nature of the case, that the party against whom the reversal is pro nounced can never succeed in the action.” The recent amendment of section 1022 of the Code of Civil Procedure has not, in our judgment, changed the practice in this par ticular. The provision that “the appellate division shall re view all questions of fact and of law, and may either modify or affirm the judgment or order appealed from, award a new trial, or grant to either party the judgment which the facts warrant,” should be considered in connection with section 1317, and construed in harmony therewith. The court may grant the judgment which the facts warrant. This has ref erence to facts conceded, uncontroverted, established by rec ords, or found by the trial court. It was never intended to include controverted facts upon which issue had been joined, and in which parties were entitled to a trial by a jury. We are aware that this is an action in equity, but actions at law and in equity under the Code are no longer distinguishable as such, and the practice on review in such actions is the same. This question was settled in the case of Schenck v. Dart, to which reference has been made, and since that decision, has been the settled doctrine of this court. ll ii #1 # i ll Ill IF l # The judgment of the appellate division should be reversed and that entered upon the decision of the special term af

firmed, with costs. All concur, except O’BRIEN, J ., not vot ing. Judgment reversed.“

43 Accord, as to same rule at law and in equity,—Mead v. Burk, (1900) 156 Ind. 577. 1248 TRIAL AND APPELLATE PRAcTIoE [Chap. 10

ELLIOT v. WHITMORE.

Supreme Court of Utah. 1901.

23 Utah, 342. »

ROLAPP,_ District Judge. The appellant in this case invokes the doctrine that this court “may go behind the findings of a trial court, and consider all the evidence, decide on which side the preponderance thereof is, ascertain whether or not the proof justifies the findings and decree, and make such findings and decree as should be made in the judgment of the appellate court.” Whittaker 'v. Ferguson, 16 Utah, 240, 51 Pac. 980. We reaffirm that doctrine, and assert that this court has full power to review all questions of law and fact in equity cases, and if, in our opinion, the judgment of the lower court in such cases is not supported by the evidence, we may and will set such judgment aside. Still, that doc trine is governed by the further principle that “when such cases have been regularly tried before a court of chancery, and if it has found on all material issues, we will not disturb such findings unless they are so manifestly erroneous as to demonstrate oversight or mistake which materially affects the substantial rights of the appellant.” McKay v. Farr, 15 Utah, 261, 49 Pac. 649. After a careful investigation of the record in the case before us, we have, however, absolutely failed to find any reason for setting aside the judgment of the lower court. Ill * l ll It * ¥ # ii #49

“This is the usual rule in equity eases, and in applying it appellate courts lay stress on the tact that the chancellor saw and heard the wit nesses.-—-Watkins v. Watkins, (1909) 39 Mont. 367; Commonwealth v. Stevens, (1897) 178 Pa. 543; Milllnor v. Thornhill, (1912) 63 Fla. 531 (according less weight to decision below when evidence taken before a master); Charbadjieff v. Grotf, (1912) 69 Wash. 699; Siflord v. Cutler, (1911) 248 Ill. 340; Pallard v. Am. Freehold Land Mtg. Co., (1903) 139 Ala. 183; Herlihy v. Coney, (1905) 99 Me. 469; Reed v. Reed, (1874) 114 Mass. 372; Stevenson v. McFarland, (1901) 162 Mo. 159; Stevens v. Magee, (1902) 81 Miss. 644; ‘State Bank v. Barnett, (1911) 250 lll. 312 (hearing de novo on same evidence when it is taken before a master). Sec. 3] DISPOSITION or CASE UPON REVIEW 1249

BOTHWELL v. BOSTON ELEVATED RAILWAY CO.

Supreme Judicial Court of Massachusetts. 1913.

.215 Massachusetts, 467'.

RUGG, C. J . The plaintiff seeks damages for the death of his intestate under St. 1907, c. 392, which authorizes recov ery from a street railway company, whose servants in the conduct of its business negligently cause the death of a per son, not a passenger or an employé, “in the exercise of due care.” The point to be decided is, whether a finding was warranted that the plaintiff’s intestate was “in the exercise of due care” as required by the statute as a condition of re covery. It is not contended that there is any evidence of active exercise of care by the deceased. It has been settled after elaborate consideration that the words “due care” in this statute mean something more than a negative and pas sive freedom from fault and require reasonably intelligent and energetic attention to safety, and stand on the same basis as if they were used in an indictment under the same stat ute. It follows that the defendant’s request should have been granted to the effect that a verdict be directed in its favor. - It is urged by the defendant that this is a proper case for this court to exercise the power vested in it by St. 1909, c. 236, and to direct by its rescript that judgment be en tered for the defendant.“ The case appears to have been fully and fairly tried with an intelligent appreciation by counsel on each side of the issues involved and of the prin ciples of law applicable to it, and its merits on the ample report of the evidence contairied in the exceptions seem plain. Therefore it appears to be a case where the statute properly may be invoked. Archer v. Eldredge, 204 Mass. 323, 327, 90 N. E. 525; Grebenstein '0. Stone & Webster Engineering Corp., 205 Mass. 431, 440, 91 N. E. 411; Newhall v. Enter prise Mining Co., 205 Mass. 585, 91 N. E. 905, 137 Am. St. Rep. 461; Burke 12. Hodge, 211 Mass. 156, 163, 97 N. ‘E. 920, Ann. Cas. 1913B, 381. This course would be followed without discussion but for the decision of Slocum v. New York Life Ins. Co., 228 U. S. 364, 33 Sup. Ct. 523, 57 L. Ed. 879, which holds that “the 1250 TRIAL AND APPELLATE PRACTICE [Chap. 10

right of trial by jury” secured by article 7 of the amend ments to the Constitution of the United States does not per mit the entry, after a verdict in favor of one party, of a judgment for the opposing party under circumstances like those in the case at bar. The question there arose in review ing the action of the Circuit Court of Appeals which, under the conformity act (U. S. Rev. St. § 914 [U. S. Comp. St. 1901, p. 684]) and following a Pennsylvania statute, had entered judgment in favor of the party for whom the trial court erroneously refused to direct a verdict. The sub stance of that decision is that it is an unconstitutional exer cise of the power of legislation to authorize the entry of judgment in a case where a trial by jury has been had, ex cept in conformity to the verdict, and that, although the error’ committed by the trial court may consist solely in its refusal to direct a verdict in favor of one party, yet after a verdict wrongly rendered in favor of the adversary party as the direct result of such erroneous refusal, the only method for correcting that error within the reach of the legislative or judicial departments of government is to order a new trial, and this because of the scope of the meaning of “trial by jury,” as secured by the seventh amendment to the federal Constitution. That decision is not a final or bind ing authority on this court for the reason that the seventh amendment does not control the action of the several states in abridging trial by jury within their own jurisdiction. It applies only to the courts and Congress of the United States. Pearson v. Yeu-"da-ll, 95 U. S. 294, 296, 24 L. Ed. 436; Twin ing 'v. New Jersey, 211 U. S. 78, 98, 29 Sup. Ct. 14, 53 L. Ed. 97. The decision of Slocum v. N. Y. Life Ins. C0. was rendered by a bare majority of a divided court, four of the justices, among whom is a former chief justice of this court, joining in a dissenting opinion. But the deference due to a decision by the highestcourt of the nation when it challenges the constitutionality of our statutes (as it does because our own Constitution secures the right of trial by jury) renders necessary thorough consideration, even though it has been acted upon heretofore in numerous instances without ques tion of its validity. * 1! Ii # IF # ii Q I # The essence of trial by jury is that controverted facts shall be decided by a jury. The constitutional right to trial —i Sec. 3] DISPOSITION or Cass UPON REVIEW 1251 by jury is preserved in this regard when each party has one fair opportunity to present to a jury the ‘evidence on which he claims to raise an issue of fact. If he fails utterly to improve that opportunity, there is no constitutional guar anty that he shall be given another chance. He has had his day in court. One feature of ideal administration of justice by the jury system is that correct rulings of law shall be made by the presiding judge. If the record is so framed and preserved that the same result may be reached at a later time as would have been attained by such correct rulings at the trial that end is attained by constitutional means. The function of the jury is to pass upon the facts involved in an action. The statute now under review does not infringe upon this province in any degree. A trial judge always has had power to direct a verdict provided the law required it. The statute simply permits that to be done by this court which ought to have been done at the trial. The hypothesis by which alone it permits the order to be made is that at the trial no question of fact was in truth presented, but only one of law which the court should have ruled as such. It does not disturb the plain boundary between fact which a jury must determine and law which the court must rule. It permits the right ruling to be given at a time later than that at which it should have been made when no substantial rights have accrued in the meantime. We are of opinion that the history of our practice as to trial by jury both before and since the adoption of the Con stitution shows that the trial by jury of our Constitution has slightly more flexibility in its adaptation of details to the changing needs of society without in any degree impairing its essential character than is ruled by the majority of the court in Slocum '0. N. Y. Life Ins. Co. We are constrained not to adopt the reasoning or the conclusion of that opinion as correctly defining the scope of legislative power under our Constitution. St. 1909, c. 236, is not in violation of our Constitution. This result is in harmony with the decisions of many other courts.“ We do not rest this judgment upon their authority, however, for we have not undertaken the historical study of the several constitutional provisions un der which they have arisen to determine their weight. The defendant’s exceptions are sustained, and in accord ance with St. 1909, c. 236, judgment is to be entered in the 1252 TRIAL AND APPELLATE PRACTICE [Chap. 10

superior court for the defendant and rescript is to go to that effect. S0 ordered.

“The statute here referred to, appearing as ch. 231, sec. 122, G. L. 1921, is as tollows:—“When the justice presiding at a trial is requested to rule that upon all the evidence the plaintiff cannot recover, and such request is refused, and exception by the defendant to such refusal is duly taken, and a finding or verdict returned for the plaintiff, then if the defendant's said exception ls sustained in the supreme judicial court. and the exceptions, it any, taken in said trial by the plaintiff are all overruled, the supreme judicial court may, by rescript, direct the entry in the trial court of judgment for the defendant, and thereupon judg ment shall be so entered." Sec. 123 provides a similar procedure where the plaintiff asks for a directed verdict. 46 The court cited:—Anderson v. Fred Johnson Co., 116 Minn. 56. 133 N. W. 85; Muench v. Heinemann, 119 Wis. 441, 448, 96 N. W. 800; Hay v. Baraboo, 127 Wis. 1, 105 N. W. 654, 3 L. R. A. (N. S.) 84, 115 Am. St. Rep. 977; Cornette v. Baltimore & Ohio R. R., 195 Fed. 59, 115 C. C. A. 61; Bailey v. Willoughby, 33 Okl. 194, 124 Pac. 955; McVeety v. Harvey Mercantile Co., (N. D. Jan. 1913) 139 N. W. 586; Fishburne v. Robinson, 49 Wash. 271, 95 Pac. 80; Roe v. Standard Furniture Co., 41 Wash. 546, 83 Pac. 1109; Cruikshank v. St. Paul Fire & Marine Ins. Co., 75 Minn. 266, 77 N. W. 958; Dalmas v. Kemble, 215 Pa. 410, 64 Atl. 559; American Car & Foundry Co. v. Alexandria Water Co., 221 Pa. 529, 70 Atl. 867, 128 Am. St. Rep. 749, 15 Ann. Cas. 641; Manning v. Orleans, 42 Neb. 712; Smith V. Jones, 181 Fed. 819, 104 C. C. A. 329; Fries-Breslin C0. v. Bergen. 176 Fed. 76, 99 C. C. A. 384; Carstairs v. American Bonding & Trust Co., 116 Fed. 449, 54 C. C. A. 85; Richmire v. Andrews & Gale Elevator Co., 11 N. D. 453, 92 N. W. 819. See a very exhaustive and able discussion of Slocum v. New York Life Ins. Co., (1912) 228 U. S. 364 by Ezra Ripley Thayer,——-Judicial Adminis tration, 63 Univ. ot Penn. L. Rev. and Am. L. Reg. 585-608.

(h) Mandate.

HORTON v. STATE EX REL. HAYDEN.

Supreme Court of Nebraska. 1901.

63 Nebraska, 34.

POUND, C. This proceeding was brought to obtain a writ of mandamus commanding certain officers of the Greater American Exposition to draw, issue, and deliver to relators an unconditional warrant upon the treasurer of said corpo ration for the payment to them of the sum of $10,000. The .~district court allowed the writ. Error was taken to this Sec. 3] DISPOSITION or CASE UPON REVIEW 1253 court, which held that the proceedings below were unwar ranted, and the writ improvidently allowed, reversed the judgment, and remanded the cause. Horton v. State, 60 N eb. 701, 84 N. W. 87. A motion for rehearing having been filed on behalf of relators, which was not disposed of until the opening of the January, 1901, term, of this court, a mandate issued on January 28th. This mandate was not filed or docketed in the district court until March 23d. Two days before, on March 21st, the relators appeared in that court, and procured an order of dismissal. When the man date was filed, this order was set aside ex parte, at the in stance of defendant, on the ground that it had been rendered prematurely; and on the same day, March 23d, on motion of the defendant Horton, supported by an affidavit showing that $10,000 of the moneys of the corporation had been paid to, and obtained by, relators under and by virtue of said writ of mandamus an order issued requiring relators to show cause, on or before March 30th, why restitution of said moneys and interest thereon should not be awarded. The relators, having been served with said order, appeared specially, and objected to the jurisdiction of the court. At the hear ing, the district court held that it had jurisdiction to render the order of dismissal on March 21st, that it had no juris diction to set such order aside on March 23d, nor to enter the order to show cause on the same date, and sustained the objections. Error is prosecuted from this ruling. The argument made on behalf of relators is that as soon as the cause was determined in this court, and a mandate issued, the district court was reinvested with jurisdiction, and might properly act without having the mandate before it; that the right of a plaintiff to dismiss, in the absence of some pleading, showing, or claim of the adverse party on file entitling the latter to relief,_is absolute, and that the order of March 21st was made with full jurisdiction, giving effect to this absolute right of dismissal; that even if the order was prematurely made, and the court had the power to set it aside, in the absence of some application by the defendants for relief, on file at the time, it should not have done so, and hence, in any event, the final action of the court was right. We are unable to agree to these propositions, under the circumstances disclosed by the record. While it is true that the Code of Civil Procedure provides in express 1254 TRIAL AND APPELLATE PRACTICE [Chap. 10 terms only for a special mandate, which is to issue where a judgment is reversed and a new judgment entered in the supreme court, it does not follow that mandates are abolished or rendered unnecessary in all other cases. Under various _~ names, “mandate,” “remittitur,” or “procedendo,” such pro cess from the appellate court to the lower tribunal is in gen eral use in all common-law jurisdictions. Where a judgment W is aifirmed, indeed, the mandate has no ofiice to perform, and may be dispensed with. State v. Sheldon, 26 Neb. 151, 42 N. W. 335. But where a judgment is reversed a mandate is the usual, and, it seems to us, the only, legal method of communicating the ruling of the one court to the other with authority. It is the judgment of this court which the lower court is to look to, not its opinion, and it must be obvious that some authentic and official notification of the judgment affords the only sure basis for further proceedings. This is furnished by the mandate, which is “the ofiicial mode of communicating the judgment of the appellate court to the lower court.” 13 Enc. Pl. & Prac. 837. Such, moreover, is

the settled and recognized practice in this state. State '11. Sheldon, 26 Neb. 151, 42 N. W. 335; State v. Omaha Nat. Bank, 60 Neb. 232, 82 N. W. 850. As between the opinion and such official statement of the judgment in a mandate, the district court must be guided by the latter. Merriam v. Gordon, 20 Neb. 405, 408, 30 N. W. 410. Hence we are not able to assent to the proposition advanced by counsel that, in the absence of an express statutory requirement of a mandate, “any way in which the court can be satisfied of the action of the supreme court will answer the purpose." It has been held that, where no mandate is issued, the lower court will not act on a certified copy of the judgment of the appellate court. Nauiga-Hon Co. v. Hertzberg, 26 Or. 216, 37 Pac. 1019. The statute recognizes a mandate as the proper legal mode of communication, and, assuming this, provides for a special mandate in certain special cases. The very use of the term “special mandate” implies that for ordi nary cases there is to be a general mandate. "The cases which have been cited as leading to a contrary conclusion are not inconsistent with this view, as we shall show in.another connection. The jurisdiction of the supreme court over its own judg ments and orders is, in general, the same as that of any

. , 0 as\ Sec. 3] DISPOSITION or CASE UPON Rnvmw 1255 other court of record, and hence it may alter or modify such judgments or orders .and correct its mandates accordingly at any time during the term at which they are rendered, unless its mandate has been filed and acted upon in the lower court prior to the end of the term. Bronson 0. Schulten, 104 U. S. 410, 415, 26 L. Ed. 797; People 0. Village of Nelliston, 79 N. Y. 638; Trowbridge 0. Siclcler, 48 Wis. 424, 428, 4 N. W. 563. Obviously there must be some point of time at which the jurisdiction of the one court ceases and that of the other court attaches, and, while the subject is not free from judicial conflict, we think the sounder rule draws the line at the time when the mandate is acted upon and carried into effect. Merriam 0. Gordon, 20 Neb. 405, 30 N. W. 410; Peo ple 0. Village of Nellistcm, supra. But it may be observed that the weight of authority fixes the transfer of jurisdiction at the time when the mandate has been filed in the court below. Leese 0. Clark, 20 Cal. 387; Zorn 0. Lamar, 71 Ga. 85; King 0. Ruckman, 22 N. J. Eq. 551; Whaley 0. Bank, 5 Rich. 262; Ward 0. Insurance Co., 12 Wash. 631, 42 Pac. 119. And such rule would be equally consistent with the view we take of this case. Counsel in contending that the issuance of a mandate terminates the jurisdiction of the ap pellate court, and gives jurisdiction to the lower court, point out what the practice in altering or modifying a judgment is to recall the mandate. But we think the object of this is to stay action thereon while the appellate court is consider ing what modification shall be made, and that the acknowl edged power to recall the mandate before it is carried into effect argues jurisdiction in the appellate court. For these reasons, and in order to prevent unseemly conflict of author ity, we think that a district court whose judgment has been reversed should defer action until the mandate of the su preme court is before it. 13 Enc. Pl. & Prac. 837; Tro'w bridge '0. Sickler, 48 Wis. 424, 4 N. W. 563; Wright '0. King, 107 Mich. 660, 65 N. W. 556; Barnwell 0. Marion, 56 S. C. 54, 33 S. E. 719; Layfferty 0. Rutherford, 10 Ark. 453; Navi gation C0. 0. ‘He-rtzberg, 26 Or. 216, 37 Pac. 1019; McAlpin 0. Bennett’, 21 Tex. 535. If, however, both parties proceed without. objection in the absence of a\ mandate, if the pro visions of the judgment of reversal are carried out, and trial had, we do not doubt that the irregularity is not to be taken advantage of by either party in appellate proceedings. It is »-1-v--qr“-q — 1256 TRIAL AND APPELLATE PRAcT1cE [Chap. 10 fundamental that no error is available in such proceedings unless prejudicial, and such an irregularity would be tech nical only, and without serious results. Many cases of that character have been cited to us, and we fail to perceive that they militate against our conclusion in any way. As the

district court entered its first order at a time when the man date was not before it, and in the absence of any authentic record of what had been done in the supreme court, we think it it did right in treating such order as would any other un

advised and improvident action, and setting it aside at once. All judgments and orders of the court are under its control during the term at which they are rendered. In ordinary cases the proper, and perhaps even the necessary, course is

by motion and notice. But, when it is manifest on the face of the record that the court has acted irregularly and unad

visedly, it may and should, so long as its power over the act

in question continues, undo it as soon as the facts come to its notice. Alspaugh 0. Ionia Circuit Judge (Mich.) 85 N.

W. 244. And it may do this regardless of the form in which

application for such action is made. Bradley '0. Slate-r, 58 Neb. 554, 78 N. W. 1069. We think the general rule that the court has full power and control over its judgments and orders during the term at which they are rendered applies to an order of dismissal

entered at the instance of a plaintiff, the same as to any

other order. If the right of a plaintiff to dismiss were abso lute, and the action of the court following thereon ministerial

only, the rule might not apply. But this right is not ab solute, in the sense that the court has no power over, or discretion with respect to, its exercise. On the contrary, the court, in its discretion, may refuse to dismiss whenever justice to the court or its ofiicers, or to any of the parties, requires imposition of terms, or retention of the cause upon the docket. Sheedy 0. McMurtry, 44 Neb. 502, 503, 63 N. W. 23; Beals 0. Telegraph Co., 53 Neb. 602, 74 N. W. 54. In the case first cited this court said: “The existence of the a right of plaintiff to dismiss at any time during a pendency a a of cause, as general proposition, must be qualified, and is not absolute, in the sense that it takes the subject without the control of the court in which the cause is pending, so that

it cannot, within its discretion, impose the condition of the

payment of costs as obligatory and precedent to a dismissal

.. ,2 .._-..-,= I. .i n_ii._ _l

Sec. 3] Drsrosmou or CASE UPON REVIEW 1257 of the action.” This discretion has been exercised to require payment of costs (Sheedy 'v. McMurtry, supra) ;_to protect rights of attorneys under agreements as to fees (Byron 21. Durrie, 6 Abb. N. C. 135) ; to protect a defendant in his plea of estoppel from the danger of possible transfer of a lien (Stevens v. Railroads [C. C.] 4 Fed. 97); and to enable a defendant to obtain restitution (Lane v. Morton, 81 N. C. 38). Of course, there must be some real and substantial right which has accrued to the adverse party in the very cause sought to be dismissed. Collateral consequences, such as subjection of the defendant to further litigation, or pur poses not connected with the action in question, will not be allowed to interfere with the right given to plaintiffs by statute. Banks v. Uhl, 6 Neb. 145. Hence, ordinarily, the dismissal will be allowed as of course. Beals '0. Telegraph Co., 53 Neb. 602, 74 N. W. 54. But we know of no case appealing to a court more strongly for application of its discretionary power than one in which money or property has been taken under an unwarranted and improvident judg ment, which has been reversed, and the adverse party is en titled to restitution. It would require convincing argument and strong weight of authority to persuade us that a dis missal could be had as a matter of right in such case, before mandate filed, and without reasonable opportunity to direct the court’s attention to the claim for restitution, and the de fendant thus deprived of his summary remedy, and driven to the difficult and expensive remedy of another action. The discretion of the court in such cases is grounded on the requirements of justice to itself, its officers, and the adverse parties. It depends upon the existence of rights which would be jeopardized by dismissal, not upon the manner in which the court becomes cognizant of such rights. The absence of a formal claim or assertion thereof upon the record does not necessarily give the plaintiff advantage. It was within the discretion of the district court to refuse to dismiss the cause in order to protect the defendant’s right of restitution. That being so, it had power, during the term, to set aside an unadvised dismissal for the same purpose. Where a party to a cause has obtained money or property under or by virtue of a judgment which is afterwards re versed, the court has power to compel restitution by sum mary proceedings in that cause. Association v. Hier, 55 _- .1

1258 TRIAL AND APPELLATE PRACTICE [Chap. 10

Neb. 557, 558, 75 N. W. 1111; Fuel C0. v. Brock, 139 U. S. 216, 11 Sup. Ct. 523, 35 L. Ed. 151; Bickett 'v. Garner, 31 Ohio St. 28; Ea-mes v. Stevens, 26 N. H. 117. Such restitu tion is a matter of right, and does not depend upon the merits of the controversy between the parties, the probabilities of another judgment to the same efi*'ect, or the solvency of the party entitled to the restitution. Hier '0. Association, 60 Neb. 320, 83 N. W. 77; Bickett v. Garner, 31 Ohio St. 28;

Morgan 'v.' Hart, 9 B. Mon. 79. “The defendant having been put out of possession by an abuse of the process of the law, the law must be_just to itself, as well as to the defendant. by restoring him to that of which he was wrongfully de

prived. When the defendant is restored to the possession, then, and not until then, will the court be in condition in

which it can honorably to itself pass upon the further rights of the parties.” Hier v. Association, supra. In the com mon-law practice, whenever the record showed that money had been collected by of, and applied upon, the re virtue versed judgment, a writ of restitution issued as of course. If

the facts were not sufliciently disclosed by the record, a writ of scire facias issued. United States Bank v. Bank of Wash 8 8, ington, 6 Pet. 17, L. Ed. 299; Gay 2». Smith, 36 N. H.

435; Ma-1-tin o. Woodrufi, 2 Ind. 237. Under our practice, the order to show cause entered by the district court would be the equivalent of the latter proceeding. In the case at

bar there is only a return of the sheriff that he served the peremptory writ of mandamus upon the defendants. There is no further return, and the record does not disclose whether the warrant was drawn, issued, and delivered, nor

whether it was paid in whole or in part. Did the record show compliance with the writ, and payment and receipt of the money in obedience thereto and in consequence thereof, restitution should be awarded as of course, and we should

feel bound to direct a judgment of that nature in the district court. Association 12. Hier, 55 Neb. 557, 75 N. W. 1111. But, as such facts are made to appear aliz1.nde, we think the course entered upon by the district court, namely, the order to show cause why restitution should not be made, was right, and

that the court erred only in not pursuing the path it had taken. It is recommended that the judgment be reversed, and the cause remanded for further proceedings, under the order to J Sec. 3] DISPOsITI0l~I or CASE Upon REVIEW 1259 show cause why restitution should not be adjudged not in consistent with this opinion. SE1>c'w1cK and OLDHAM, CC., concur. PER CURIAM. For the reasons set forth in the foregoing opinion, the judgment of the district court is reversed, and the cause is remanded for further proceedings under the order to show cause why restitution should not be adjudged not inconsistent with said opinion."

4'1 F0-rm of Mandate. In Bali v. Rankin, (1909) 23 Okl. 801, the man date was as follows:-—“Whereas, the Supreme Court of‘. the territory of Oklahoma did at the June, 1907, term thereof,.and on the 14th day of June, 1907, render an opinion in the above entitled cause appealed from the district court of Logan county, reversing the judgment in said district court in said cause at the cost of appellee and remanding the same thereto with instructions to proceed in conformity with said Su preme Court opinion: Now, therefore, you are hereby commanded to cause a reversal of the judgment of said district court in said cause to be entered of record therein, and take such other and further proceed ings in the matter as shall.i~accord with said Supreme Court opinion.” WASHBURN & MOEN MANUFACTURING CO. V. ‘ CHICAGO FENCE CO. -

Supreme Court of Illinois. 1886.

119 Illinois, 80.

SCHOLFIELD, J. The first, in our opinion the controlling, question arising upon this record is Whether, when the case was here at the former term (109 Ill. 71) it was remanded for a hearing, or only to modify the decree of the superior court in conformity with specific directions then given. In cases where a modification of the decree below is deemed necessary, it is discretionary whether the court shall, by an order to be entered on its records, make the modification, or whether it shall remand the cause to the lower court with specific direc tions to that court to make modifications. Section 81, c. 110, Rev. St. 1874. In either case it is proper that the order of this court, be, first, that the decree below be reversed. Hunter '0. Hatch, 45 Ill. 178. But whether the effect of such order of reversal shall be to open up the case for rehearing will de pend entirely upon the modification of the decree made, or 1260 TRIAL AND APPELLATE PRACTICE [Chap. 10

directed to be made; for the only purpose for the order of reversal being that the modification shall be made, the sub stantial rights of the parties to the record, so far as con cerns any question now before us, are precisely as if, from the moment of the entry of the judgment of the court, the decree actually read as it would read after making the record entries in the different courts essential to the modification. And since the direction that one part of the decree be modi fied is, by necessary inference, an approval of that part omit ted from that direction, the substantial rights of the parties to the decree are not perceptibly different from what they would be were it expressly ordered, in the formal entry upon the record, that such omitted part of the decree is affirmed. No statute requires that the specific modification directed shall be embodied in the formal order of the court entered of such record by the clerk of this court; and it is conformable with our practice, and sufiicient, if the modification be spe cifically directed in the written opinion of the court filed in the case; and so it is held that it is the duty of the lower court to examine the opinion, and conform its action to it. Wad hams 'v. Gay, 83 Ill. 253; Boggs 'v. Willard, 70 Ill. 315; Hough '0. Harvey, 84 Ill. 308. The specific directions here given are all in the Written opinion of the court, and the meaning in tended to be conveyed in the language employed for that pur pose will be better comprehended by restating the questions under consideration to which that language was applied. The tenth condition in the license issued by appellant to appellee has this clause: “And the royalty to be paid under this license shall not be greater than that charged to any other party licensed after the first day of January, A. D. 1881, un der said several letters patent,” named in the license; and that in case a license should be given to any other party at a less royalty, that “then thereafter that royalty to be paid un der this license shall be the same as such reduced royalty.” The bill was filed for the purpose of obtaining the specific per formance of this condition, alleging a certain settlement made subsequent to the first day of January, A. D. 1881, by appel lant with Jacob Haish, under the terms of which Haish was licensed to manufacture barbed fence wire to the extent of 4,000 tons annually, free of royalty, under appellant’s patent; and the bill prayed allowance to appellee of the benefit of all _~reduction of royalty made to Haish. The allegation was put Sec. 3] DISPOSITION or CASE Uron REVIEW 1261 in issue by answer. Evidence was heard, and the court de-. creed as prayed in the bill. The opinion, after giving a history of the settlement with Haish, proceeds thus: - * "' * “but Haish was not bound to manufacture more than 4,000 tons annually, and to the extent of 4,000 tons year ly he had a free license. Whether he would manufacture in excess of that was optional with him. The proof shows that, up to the time of the hearing of the superior court, his yearly manufacture did not exceed 4,000 tons, so that upon what he manufactured he paid no royalty, upon the theory of the de cree, and so far the decree was right in exempting appellee from the payment of the royalty; but if in the future, subse quent to the hearing, Haish should manufacture in excess of 4,000 tons yearly, he would have to pay royalty, under the provisions of his license, which, if he manufactured to the limit of his license, would be fifty'cents per one hundred pounds on the second two-fifths of his manufacture, and seventy-five cents per one hundred pounds on the last one fifth. As respects, then, any future manufacture by Haish which might be in excess of 4,000 tons yearly, we are inclined to think appellee should be required to pay the same propor tionate royalty as Haish would have to pay, so that there should be the same ratio of royalty to tonnage manufactured in the case of appellee as in that of Haish, and that in the re spect of any such future manufacture the decree should be modified accordingly.” * * " We can add nothing to make more perspicuous the language, “For the purpose of a modification of the decree in the manner above indicated, the decree will be reversed, and the cause remanded,” etc. We understand, and we do not know that it is at all controverted, that this, under a familiar rule of construction, clearly means that the decree was reversed, and the cause remanded, only for the purpose of such modification, and thus excludes all interference for any other purpose. Assuming that we are not in error in this, it was the duty of the superior court, in the performance of which it had no discretion, to modify its decree as thus directed; * * " 7 * * * We concede that directions by appellate courts to trial courts, in particular cases, as expressed in written opin ions, are ordinarily in general terms, giving the substance in 1-}:

1262 , TRIAL AND APPELLATE PRAoTIoE [Chap. 10 outline,—simply of what is required to be done,—and leaving matters of detail to the trial courts; but we understood the rule to be, when a case is remanded to the lower court with specific directions to modify the decree therein, that the lower court is not authorized to include anything in the modified decree which is not either actually expressed in the language of the opinion directing the modification, or necessarily im plied from that language. The reason is obvious. The lower court is not acting on its own motion, but in obedience to the order of its superior. What the superior says it shall do, it must do, and that alone. Where the doing of one thing neces sitates the doing of others as necessary incidents, the order that they shall be done is implied in the order to do that to which they are incidents. After the case, upon being remanded, was redocketed in the superior court, appellant asked leave to file a supplemental answer, setting up that “on or about the eighteenth day of December, A. D. 1883, an agreement was entered into and made by the parties to this suit, in and by which a new license was issued by the defendant to the complainant. "‘ * *” The court refused to allow it to be filed, and this ruling also counsel insists was erroneous. 1|! Q IF 1‘ * * # # ¥ i is We concede that where a decree reversed, and the cause

is remanded, with directions to the trial court to proceed in

conformity with the opinion then filed, and it appears from the opinion that the grounds of reversal are of a character to be obviated by subsequent amendments of the pleadings, or

the introduction of additional evidence, or both, it is the duty of the trial court to permit the cause to be redocketed, and then to allow amendments to be made, and evidence to be in troduced on the hearing, just as if the cause was then before

the court for the first time; and under such a state of facts, upon the second hearing, new questions of law or fact may arise, as to which no opinion was or could have been expressed in the written opinion of this court, pursuant to which the former decree was reversed and the cause remanded. But

where, as here, the cause is remanded with directions to make

a specific modification of the decree, not requiring any change in the pleadings, nor the introduction of additional evidence. but only with the view to have the decree conform to the case made by the record, nothing remains to be done but to make

__ LL Sec. 3] DISPOSITION or CASE UPON REVIEW 1263 1 that modification, and then execute the decree. The decree is affirmed.“

'18 “The opinion delivered by this court, at the time of rendering its decree, may be consulted to ascertain what was intended by its man date; and either upon a writ of mandamus, or upon a. new appeal, it is for this court to construe its own mandate and to act accordingly,” ' In re Sanford Fork & Tool Co., (1895) 160 U. S. 247.

MUTUAL LIFE INSURANCE CO. v. HILL.

Supreme Court of the United States. 1904.

198 United States, 551.

BREWER, J . A preliminary matter is this: When the case was here before we held that, upon the record, there was dis closed an abandonment of the insurance contract by both the insured and the beneficiaries, and on that ground the judg ment was reversed. It is now contended that “the only ques tion left open by the mandate of this court was a submission of this question ;” that our decision was substantially an ad judication that the plaintiffs had a right to recover unless it was shown that there had been an abandonment of the in surance contract, and that upon this trial it was shown that there had been no such abandonment, the insured having al ways expressed a wish to continue the policy, the beneficiary named in the policy having died before the second premium became due, and her children, who became entitled thereafter as beneficiaries, being minors and in actual ignorance of its existence. That decision was based upon the averments of the pleadings, and these pleadings were amended after the judgment was reversed and the case returned to the trial court. Clearly, the contention of the plaintiffs is not sustain able. When a case is presented to an appellate court it is not obliged to consider and decide all the questions then suggested or which may be supposed likely to arise in the further pro gress of the litigation. If it finds that in one respect an error has been committed so substantial as to require a reversal of the judgment, it may order a reversal without entering into any inquiry or determination of other questions. While un dcubtedly an affirmance of a judgment is to be considered an -. __._..4

1264 TRIAL AND APPELLATE PRACTICE ~ [Chap. 10 _ adjudication by the appellate court that none of the claims of error are well f0unded,—even though all are not specifically referred to in the opinion,—yet no such conclusion follows in case of a reversal. It is impossible to foretell what shape the second trial may take or what questions may then be pre sented. Hence the rule is that a judgment of reversal is not necessarily an adjudication by the appellate court of any other than the questions in terms discussed and decided. An actual decision of any question settles the law in respect thereto for future action in the case. Here, after one judgment on the pleadings had been set aside, on amended pleadings a trial was had, quite a volume of testimony presented, and a second judgment entered. That judgment is now before us for re» view, and all questions which appear upon the record and have not already been decided are open for consideration. # Q i 1 ii III IF ¥ 1 $49 1 49Efl'ect of am/rmanoe on plea of res adjudicata. ‘It must be conceded that, it there had been no appeal from the judgment first rendered by the Circuit Court, this action would not lie. It would have been a com plete and final adjudication of the plaintiffs right to the property in ' * " ' controversy. The afllrmance in this court F ' left the judgment and the rights of the parties precisely the same as though no appeal had been taken."—Finch v. Hollinger, (1877) 46 Ia. 216.

WALLACE v. SISSON.

Supreme Court of California. 1896.

114 California, 42. a HARRISON, J . Upon former trial of this cause, the court made findings of fact, and rendered judgment thereon in fa vor of the defendants. This judgment and an order denying

the plaintiffs’ motion for a new trial were subsequently rc versed by this court, upon the ground that certain findings of fact were not justified by the evidence. 33 Pac. 496. Upon the second trial of the cause, the court made similar findings of fact, and again rendered judgment in favor of the defend j ants. From this udgment, and an order denying a new trial, the plaintiffs have appealed. It was contended by the plain tiffs at the trial, and is also contended by them here, that the Sec. 3] DISPOSITION or CASE UPON REVIEW 1265 evidence is substantially the same as upon the former trial, and that the former decision of this court that this evidence was insufficient to justify the findings then under considera tion became the law of the case, and that the trial court was thereby precluded from making the present findings, although its own judgment concerning the effect of this evidence might be contrary to the decision of this court. Both of these propo sitions are controverted by the defendants. An unbroken line of decisions, commencing with Dewey v. Gray, 2 Cal. 374, has established the rule in this state that a decision of this court upon any question of law in a case ap pealed to it from an inferior court becomes thereby the law of that case, and is thereafter, in all subsequent stages of the case, binding, not only upon the inferior court, but also upon this court if again brought before it. It has never been held. however, that the decision of this court upon a question of fact is subject to this rule. On the contrary, it has been fre quently said that the rule is limited to questions of law, and is not applicable to questions of fact. "‘ * "‘ In Mattingly v. Pennie, 105 Cal. 514, 39 Pac. 201, the court said: “It is settled beyond controversy that a decision of this court on appeal as to a question of fact does not become the law of the case.” It frequently happens that the sufiiciency of the evi dence to justify the decision depends upon the competency of the evidence, or the effect of an act or admission, or the con struction to be given to a Written instrument. If, in such a case, the appellate court holds that the evidence was incom petent, or received an erroneous construction by the trial court, and that for this reason the evidence was insufficient to justify the decision, such ruling of the appellate court be comes the law of the case, since the sufficiency of the evidence depends upon the question of law which is thus decided. See Leese v. Clark, 20 Cal. 387. But, when the fact which is to be decided depends upon the credit to be given to the witnesses whose testimony is received, or the weight to which their tes timony is entitled, or the inferences of fact that are to be drawn from the evidence, the sufliciency of the evidence to justify the decision must be determined by the tribunal before which it is presented, and is not controlled by an opinion of the appellate court that similar evidence at a former trial of the cause was insufficient to justify a similar decision. This results from the relative functions of the trial court and the Y Q.

1266 TRIAL AND APPELLATE PRACTICE [Chap. 10

appellate court, the former alone being authorized to deter mine questions of fact, and the latter being limited to deter mining questions of law. The appellate court cannot itself make a finding of fact when the evidence is all before it, or find the ultimate fact from other probative ‘facts, unless such ultimate fact follows as a conclusion of law therefrom; and if, in the opinion which it renders, it assumes that the evidence sustains any fact, it is only the opinion of the court, and not a finding of that fact. Kimball o. Semple, 25 Cal. 455. “We do not pass upon the weight or preponderance of evidence, nor in a case where opposing inferences may be drawn can we review a finding because, in our judgment, the inference de duced by the trial court is improbable, or more unlikely to be true than the opposite one.” Reynolds o. Robinson, 82 N. Y. ' 106. Whether the evidence in a case tends to prove a fact is a question of law which arises when the admissibility of such evidence is questioned, or when it is relied upon for the pur pose of establishing a controverted fact; and the decision of the appellate court that such evidence does or does not tend to establish the fact is a decision upon a question of law which is conclusive upon the trial court; but whether the evidence is sufficient to establish the fact is a question of fact, which must be determined by the tribunal to which it is submitted. _ A declaration by the appellate court that it does establish the fact would be outside of its functions, and would not be bind ing upon the trial court. So, too, whether a particular infer ence can under any circumstances be drawn from certain evi dence is a question of law; but whether the inference shall in any particular case be drawn from the evidence is a question of fact. “An inference is a deduction which the reason of the jury makes from the facts proved, without an express direc tion of law to that effect.” Code Civ. Proc. § 1958. Whether there is any evidence in support of a finding, or whether there is a conflict of evidence upon a controverted fact, must be determined by the appellate court when pre sented to it upon an examination of the record. This includes the right to determine whether any of the evidence tends to support the decision, since that is a question of law; and, if it determines that it has no such tendency, that evidence is ex cluded from consideration. If, upon an examination of the -~record, the appellate court determines that there is no evi Sec. 3] DISPOSITION or CASE Uron Rnvmw 1267 dence in support of the decision, it reverses the judgment, for the reason that the court committed an error of law in finding a fact without any evidence in support thereof. Domico ’L‘_. Casassa, 101 Cal. 411, 35 Pac. 1024; Mason 12. Lord, 40 N. Y. 484. “When there is a total want of evidence upon some es sential fact, but the jury nevertheless finds such fact, the find ing is erroneous as matter of law; but, when there is slight evidence in support thereof, a finding thereon would be one of fact, upon which men might differ in opinion. But for a court to attempt the correction thereof upon writ of error would be but a correction of errors in fact, and not in law, a power which this court does not possess.” Conely v. Mc Donald, 40 Mich. 159. A comparison of the opinion rendered upon the former ap peal herein with the record upon the present appeal shows that, in making its decision upon the evidence before it, the superior court did not disregard the decision of this court upon any question of law determined by it upon the former appeal. Indeed, upon that appeal the decision of this court was in the main in reference to questions of fact, rather than questions of law. The question chiefly discussed in the opin ion, and which is termed by the appellants the pivotal ques tion of the case, was whether there was any contract relating to Chinamen between Sisson, Wallace & Co. and the railroad and construction companies, or whether Sisson, Wallace & Co. had any contract right by virtue of the arrangement made with Koopmanschap for bringing the Chinamen to San Fran cisco. The statement in the opinion “that a written contract was made between one of the construction companies, Koop manschap, and Sisson, Wallace & Company concerning such importation is clear, though such written contract was not produced on the trial, nor shown to be then in existence”; and the expression in the opinion, after giving the evidence in support of the above statement, and that Douty’s testimony was corroborated by the I-Iaswell letter, that “it is inconceiv able that he (Douty) would direct the agent of the steamship company to draw drafts upon Sisson, Wallace & Company for each of the two contemplated shipments, amounting to $40,000 each, without a contract right so to do,” can neither of them be considered as a decision upon a question of law, but, at most, only an inference of fact drawn from the other * * “ evidence in the case. It was for the reason that in 1268 TRIAL AND APPELLATE PRAcTIcE [Chap. 10 the opinion of this court the trial court had erroneously de cided these questions of fact that its decision was reversed, but this court did not assume to direct that court how it should again decide the questions. And, as we have seer. above, that court, when the questions should again be pre sented to it for decision, was authorized and required to exer cisc its own judgment in determining the facts which were justified by the evidence. If the evidence had been identical with that given at the former trial, and the trial court had still been of the opinion that it justified the former findings, it would not be precluded from so finding merely because this court had reversed its former decision. This court might again reverse the decision, but, before doing so, would con sider whether it might not be that that portion of the evidence which could not be reproduced in printed form—the demeanor of the witnesses, as well as their credibility, the weight to be given to contradictory testimony, the inferences to be drawn from different portions of the evidence-was such as to sup port the conclusion of the trial court. If it should appear to this court that it was possible for the trial court, under these considerations of the evidence, to so decide the issues, it might deem it its duty to yield to that court, even though the decision were contrary to its own opinion, since the trial court is the ultimate arbiter upon all questions of fact. Ill If # # * # i ¥ l I " * * There was, moreover, at the last trial, additional evidence before the trial court which was not before this court

upon the former appeal; and even if it be conceded, as is claimed by the appellants, that this evidence was cumulative,

* * * still it was not for that reason to be disregarded. A careful examination of the record herein fails to show that the evidence before the superior court was insuflicient to jus tify its decision. The judgment and order are afl‘irmed.°°

50 Accord, Hartford Fire Ins. Co. v. Enoch, (1906) 79 Ark. 475; Phelps

County Ins. Co. v. Johnston, (1902) 66 Neb. 590. - Obiter dicta do not become the law of the ca.se,—Wixson v. Devine, (1889) 80 Cal. 385.

“What was decided by a case subsequently overruled continues to be the law of the case as between the parties and those claiming under them/’—-I-Iabbits v. Jack, (1884) 97 Ind. 570; and it on a second appeal the court should become dissatisfied with its former opinion, it never theless will remain as the law of the case,—Westerfield v. N. Y. Lite Ins. Co., (1910) 157 Cal. 339. “In the absence of statute the phrase, law of the case, as applied to _~ Sec. 3] Drsrosmon or Cass Upon Rsvmw 1269 the effect of previous orders on the later action of the court rendering them in the same case, merely expresses the practice of courts generally to refuse to reopen what has been decided, not a limit to their power,"— Messenger v. Anderson, (1911) 225 U. S. 436. Law 0] the case on second appeal. “The sole reasoufor the existence of the doctrine is that the court, having announced a rule of law appli cable to a retrial of facts, both parties upon that retrial are assumed to have conformed to the rule and to have offered their evidence under it. Under these circumstances it would be a manifest injustice to eitfier party to change the rule upon the second appeal."—Allen v. Bryant, (1909) 155 Cal. 256. “An appeal will not be entertained by this court from a decree entered in the circuit or other interior court, in exact accordance with our man date upon a previous appeal. Such a. decree, when entered, is in effect our decree, and the appeal would be from ourselves to ourselves."— Stewart v. Salamon, (1878) 97 U. S. 361. l.l. i

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