3 Mont. 189 | Mont. | 1878
On the 23d day of February, 1874, the plaintiffs in the above-entitled action recovered a judgment awarding them a perpetual injunction, restraining the defendant from committing a threatened trespass upon certain property alleged to belong to plaintiffs.
In said judgment it was further adjudged that a report of a receiver who had been appointed pending the suit be confirmed, and that defendant should pay the costs of the receiver, including wages of the receiver, taxed at $890.75. There was nothing in the record that showed us how much of this bill of costs was for wages, and how much was for expenses and charges. After the signing of this judgment, the defendant moved to modify the same, and on the fourth day of March following, the court did modify the same by striking therefrom all of the costs of the receiver.
From this modified judgment the plaintiffs appealed to this court, which for this error reversed said judgment and remanded the cause for reasons assigned in an opinion, which see 2 Mon. 605.
The cause came up again in the court below, and the defendant, instead of devoting himself to any errors that might be in the judgment of costs, made application to amend his answer and then try the cause do novo.
In the ease of Woolman v. Garringer, 2 Mon. 405, this court made the following ruling: “ In determining what force and effect is to be attached to a judgment of this court reversing the judgment of the court below we may examine the opinion of this court.” And I may now add, for the same reason, that the district court may examine said opinion. For the purpose of informing the court below of the views of this court, the opinion in any case is attached to the remittitur thereof.
Again, in the case of Woolman v. Garringer, before mentioned, this court used the following language : “ But we hold that where the error complained of occurs subsequent to the trial, and where -a general verdict or a special verdict shows the facts found by a court or jury, and these are not controverted, and they are sufficient to warrant what we deem a correct judgment, and the opinion of the court clearly indicates what it would consider a correct judgment, then the judgment of this court to the effect that the judgment of the court below is reversed and cause remanded, should not be construed as granting-a new trial, but as putting the parties back to the stage of the cause where the error occurred, for which the judgment was reversed.”
There was no doubt as to where the error occurred in this case. It occurred in the judgment and not upon the trial. The question is then presented, whether or not sufficient was presented in the record of the case to warrant the court below in taking up the cause at the stage of the case where the error occurred. There had been a trial in the court below on all the issues of the case. The action sought equitable relief, the granting of an injunction. And in the decree or judgment reversed the court says: “This cause came on to be heard upon the pleadings on file, proofs and exhibits and report of the receiver herein, which is unexcepted to. Upon consideration whereof the court finds the equity of the cause with the plaintiff.” The decree in pursuance of such finding is: “That the temporary injunction heretofore granted be made perpetual.” I am inclined to think that the above find
The court below then was confronted by this finding or the presumptions of law that all the facts were found that warranted the judgment. And it appeared that the only error, for which the judgment had been reversed, was the granting of the motion to modify the judgment. There was no need, therefore, for the court to go back to try the cause anew for the purpose of finding facts sufficient to warrant the judgment. The only question presented to the court below was the assessment of costs. The motion to modify the judgment came up anew for hearing. When that was determined, all of the facts necessary to advise the court as to what judgment it shoirld enter were at hand. This is the view the court below took of the case. There was no error then in the court below refusing to allow the answer to be amended, and try the cause de novo. One trial on the- merits was sufficient.
It is true that this court might have modified the judgment when the case was formerly before it, and ended it then. But if this court thought from the record that there might be found some reasons, which did not appear in the record before it for diminishing a rather large assessment of costs, and instead of modifying the judgment on the record presented, remanded the cause, it was a matter resting in its discretion. If the attorneys for defendant did not see fit to avail themselves of the opportunity presented, or no grounds existed for, the reduction of the bill of costs in the case, then this court feels that its duty has been performed, and as there has been‘one trial of this cause on its merits, and no error now appears connected with that trial, the maxim that there should be an end of litigation applies. The judgment of the court below is affirmed with costs. Judgment affirmed.
