74 Mo. 56 | Mo. | 1881
Our statute provides that in appeals or writs of error, the Supreme Court shall examine the record and “ award anew trial; reverse or affirm the judgment or decision of the circuit court, or give such judgment as said court ought to have given, as to them shall seem agreeable to law.” R. S. 1879, § 3776. And it is further provided that the Supreme Court, “ upon the determination of any cause in appeal or error, may award execution to carry the same into effect, or may remit the record, with
When this cause was here before* we affirmed the judgment in some particulars, and reversed it in others, and remanded the cause with specific directions to govern the further steps of the trial court. Those directions have not been followed, nor our mandate obeyed. That mandate was in the nature of a special power of attorney. By it, so far as the parties to the record were concerned, authority and jurisdiction was granted to the lower court to take such steps as were ordered, and such incidental steps as were necessary to carry our mandate into execution. Beyond this, nothing. The action of the lower court in permitting Allen to amend his answer and in opening the cause for rehearing and for the trial of new issues never raised before — issues directly at variance with and repugnant to his former issues — was altogether coram nonjudice, and, of consequence, void.
It is said that since the cause was sent back, the holder of one bond, who was not a party to the record, was permitted by the court below to come in and assert his title thereto and to share in the proceeds of the general fund. No objection was made by either party to his coming in,
We reverse the judgment, leaving it optional with the plaintiff either to have the cause remanded to the lower court, with directions as before, or if possessed of the necessary data to have a decree entered here in conformity to this and our former opinion.
A motion for a rehearing was denied.
