*1 997 Co. Fidelity Deposit v. Fairfield. ark. & ] logs deter- if the title the was not be in this suit chancery by the suit. mined result of the by logs question the converted the value proper jury the was submitted under defendant point finding jury instructions, and supported evidence. judgment will that the affirmed. follows Deposit

Fidelity Company & v. Fairfield.

Opinion delivered November 1925. Appeal Where, on a as and error- —-former decision law of case. — ease, chancery Supreme in former -Court affirmed a n decreeof an sum found estate below due to the administrator bear interest date of judgment court, probate instead date of the ruling lapse term, and, though such became final after the erroneous, chancery amended, not could either in the court or Supreme in appeal. Court on a second

Appeal Mississippi Chancery Court, C'hicka- sawba District; J. Putrell, M. reversed. Chancellor; appellant.

J. T. Goston, appellee. Lasley, Little, Buck & brought A J. suit in was surcharge falsify account settlement Anthonyas of W. A. D. administrator the estate of brought by P. Fairfield, Beard. The suit the ad resigned, Anthony ministrator succession, aggregating found credits Anthony $8,417.18 had been allowed approval his-settlement''by ap court. An peal prosecuted we held refusing court was in error to allow the respects credit of but all -other $8,417.18, Deposit Fairfield, & v. was affirmed. Co. 164 Ark. 498. (cid:127) Fidelity Co. Faireield. [169 *2 ad- Fairfield, as

After the affirmance decree this chancery petition to conrt in the ministrator, filed original modify decree court—the of that the prosecuted. appeal had been the this court from/which the proceeding decree of that the It was insisted that chancery erroneously found the sum court recited that by “from interest administrator bear due the should ’’ the decree date the rendition of this that the date, is, chancery fact, had, the court court, whereas Anthony by bear that the due should sum found decreed probate judgment of the interest from the of the date Anthony by finding and declaring the sum court and due payment directing successor. to Fairfield as his its petitioner was entitled The chancellor found that prayed that an order should to the relief and directed pro correcting the decree of the nunc tunc be entered by allowing court interest from the surety Anthony’s probate judgment. The bond the on appealed from that order. has as administrator testimony that did not warrant insisted the is nothing finding the and more was below, the that erroneously court had fixed than that the shown be calculated. interest should the date which finding which out the the "Wedo not set regard unimportant. fact as The it as we made, appealed that from to this court directed that calculated from the although m&y it erro- decree, decree, have been respect indicated, was affirmed us after neous in the directing- modifying’ have it administrator against disputed claims estate which credit paid. had « he pronounced pursuant The decree of this appeal superseded opinion judg- former alike the probate and the decree of ment rights adjudged the court. We parties and liabilities of the litigant, the decree of this court was that chancery court be modified affirmed, the decree Co. v. Fairfield. ark.] from which time not tlie modification did affect and our interest fact that de- not called Our attention interest directed cree decree, date of that instead be calculated from pay judgment directing Anthony date of successor, without hands to and, in his over funds error, which could called to our attention corrected-by us, have been affirmed point so far as fixed the from which in- time terest was The to be calculated. decree of this court question. f on the ormer is conclusive of the *3 pro appealed of the nunc effect tunc order here from is only amend, not the first decree from, but appeal. also the court decree on. The jurisdiction court was without do this.

It follows therefore that the decree of the chan- cery amending original pro court a nunc tunc order erroneous, is therefore reversed, and will be set aside canceled, and the interest will therefore be calculated from the date of the decree appealed from. (on rehearing). J., In the brief counsel appellee support petition rehearing--it in holding

is insisted that we erred in that the error com- plained of was that one could have corrected appeal, support first and in of this contention case Bilby, Foohs v. 95 Ark. 302, is cited.

We do not concur in the view of counsel that case any application cited has here. The Foohs case was a equity. Upon appeal case; law the instant case is one in try court we do not the case de circuit novo. rqview only assigned. chancery appeals In We the errors try do novo, we the cause de and, done we so, enter opinion, here the decree our which, in should have been by the court in below; or, rendered certain cases, directions to remand the cause below as to with exceptional per- enter. In certain the decree eases Co. Fairfield. [169 granted mission is to take additional may But whatever the order court'below. be in a -of this chancery appeal, finding this court is based upon trial here. a de novo reported appeal,

In 164 Ark. the first after entire case was before a trial de us, novo, we and, opinion, which, entered the decree should have court below. been rendered in the We held that admin- istrator had been denied certain credits which him,' should have been allowed and we modified the respects allowing credits, these but in all other necessarily questions the decree was affirmed. One involved on the the date from which the inter- est should have been had adjudged be calculated court; the decree in that at least the decree recited. so now in fact the decree The insistence is that this was not right and that court has the adjudication which correct the decree to conform in fact made. us said, as we have the whole before But, case was novo, for a trial de which interest question necessarily calculated was involved' appeal. which We affirmed decree recited *4 be not from the of the calculated, should date interest approval of the administrator’s settlement from the of decree of but appeal prosecuted. is now court from which the was appears, taken on insisted that it the court below to correct this decree, motion in properly computed have interest administrator’s settlement he when pay funds in to his suc- over the hands ordered to jurisdiction to so our within cessor. It was might been called to our so, had the matter have done not, and effect- but was attention, part from which affirm was to period from which decree as the the date of fixed V. LONGINOTTI LoNGINOTTI. ABE.] The decree of first has beyond power final, (cid:127)become it is now either the. adjudi- this court or the correct it. We question adjudica- cated a trial on de and this novo, though erroneous, even is and the for tion, final, motion rehearing will therefore be overruled.

Longinotti Longinotti. Opinion delivered 1925. 30, November may spouse one con- condonation. —While 1. Divorce —effect other, deprive such does not conduct of condonation done right aggrieved spouse a divorce account of sub- conduct, sequent offending spouse, misconduct of the and such -will right revive the to divorce for condoned offense. 2. a misconduct. —Where hus- condonation-—subsequent Divorce — paramour, band condoned a misconduct his wife with there implied agreement just an that she would not cause 'afford suspect ceased, for him to that such had not as would misconduct telephone ibethe case where clandestine communications continued paramour between her and her under fictitious names. 3. custody p. 317, providing of child. —Under Acts Divorce — living apart that when father and mother are there shall no preference ip custody awarding children, and that wel- disposing fare of the children must" be of their considered first custody, fourteen-year girl the award mother of a old who was hostile to the will father not ibe disturbed. support. 4. Divorce —allowance —-Where a husband for child’s against ground adultery, awarded divorce his wife on the support living court’s allowance for of the child wife with the should be for the exclusive use of the child. Appeal 'Chancery P. Hen- Conrt; Garland J. part. derson, Chancellor; reversed in appellant. Martin, <& Martin, for Woofton Murphy appellee. & Wood, against by appellant J. This is an action n Appellant appellee upon asked the divorce. divorce *5 ground adultery, alleged had for wife many years unduly Sam intimate man with a named