delivered the opinion of the court.
At the December term, 1867, of the Probate Court of St. Louis County, Charles Gibson presented his final settlement as executor of the estate of Hamilton R. Gamble, deceased. The devisees and distributees filed twenty-one
The usual mandate was sent down to the Circuit Court, directing the court to proceed in conformity with the opinion of the Supreme Court. Thereupon the executor moved the court to enter judgment in accordance with the report of the referee, except as to the seventh or gold exception ; as to that, the seventh exception, to render judgment for the executor upon the facts found and reported by the referee. This the circuit judge, after having taken the opinion of the judges in general term, declined to do, and upon this ruling the executor took a bill of exceptions. The executor then applied to this court for a mandamus to compel the circuit judge so to enter judgment, which this court refused upon the obvious ground that, though a mandamus will lie to compel an inferior court to proceed in a cause, it cannot be resorted to to instruct the court how to proceed. The State ex rel. v. St. Louis Circuit Court, 1 Mo. App. 543. The exceptors then moved that the whole case be again referred to a referee, to retry the issues of fact and law, which motion the court denied, and the exceptors excepted. The court then, against the objection of the executor, referred the cause to Edward T. Earish, “ to retry the matter contained in the seventh exception to his report heretofore filed herein.” Earish declining to act, Nathaniel Holmes was appointed in his place, and a supplementary order was made defining the scope of inquiry before him, which did not materially change the previous order. Under this order, the facts relating to the seventh exception were heard de novo before the referee Holmes, and he rendered a report thereupon, finding “that the executor, in these purchases of gold, acted in good faith, according to his best judgment, for the interest of the estate,” and that his action in this respect “ was a prudent and faithful discharge of his duty as executor and trustee, and cannot be considered as unauthorized or imputed as a fault, or failure of
We have arrived at the conclusion that the Circuit Court committed no error in refusing, upon the reversal of its decree by the Supreme Court, to refer the whole case again to a referee. We have also come to the conclusion that in refusing to enter judgment upon the request of the executor, in conformity with the opinion of the Supreme Court, the Circuit Court committed error, and that it was error again to refer the seventh exception to a referee, upon an order which reopened the facts for contestation. In the view we take, the failure of either party to appeal to the Supreme Court from the judgment confirming the report of Farish, referee, upon a bill of exceptions which brought before that court for review the facts upon which his findings were based, had the effect of conclusively settling those facts as the facts of the case, so that it was not competent for the Circuit Court at a subsequent term to reopen the case as to any of those facts. It is to be remembered that this proceeding is in the nature of a suit in equity. It involves matters of complicated account between an executor and devisees and distributees whose interests are dissimilar. In such proceedings, the well-known practice of courts of chancery has always been to mould their orders
We have no distinctive bill in equity in Missouri; but our Code, in blending all kinds of civil actions into one, obviously did not intend to deprive equitable proceedings in our courts of that flexibility which characterizes proceedings in courts of chancery. This is apparent from our statute relating to referees (Rev. Stats., sect. 36.06), which empowers the court in cases like the present, where the trial of an issue of fact shall require the examination of a long account on either side, either to direct the referees to hear and decide the whole issue, or to report upon any specific question of fact involved therein. The reason of the rule remains as strong under our system of procedure as under the old system. It is a reason founded upon public policy, which favors the speedy determination of litigation. The repose of society and the interests of the State are involved in it. It often exacts a sacrifice of the rights of parties; it always exacts that litigation shall be brought to an end when it can be done without sacrificing substantial rights. If a complicated suit in the nature of a suit in equity, which embraces within its comprehensive scope many different matters, is to be wholly opened for the taking of evidence and a rehearing de novo, whenever an appellate court may overrule a court of first instance as to any one of these matters, then such litigation will be practically without end; for it will be scarcely possible that there should not, in such cases, be differences of opinion on some point or other between the original and appel
But, if we had any doubt upon this question as a question of practice, our doubts would be concluded by the decision of the Supreme Court in Hurck v. Erskine, 50 Mo. 116, which, as we read it, conclusively settles this question. That was a suit in the nature of a suit in equity by a trustee to compel two beneficiaries in the trust to interplead as to their respective interests in the fund in his hands. The case was tried by the court, which made certain findings of fact, and upon these findings of fact rendered judgment that the two beneficiaries should share in the fund pro rata. On appeal the Supreme Court took a different view of the law, holding that Erskine, one of the beneficiaries, was entitled to payment in full in preference to Price, the other beneficiary ; and, as in this case, the Supreme Court reversed the judgment and remanded the cause, to be proceeded with in accordance with the opinion in the case. When the case came back, the Circuit Court, instead of entering a judgment of distribution on its findings of fact, as the Supreme Court had indicated in its opinion, permitted Price to file a new answer, raising in substance the same issue which had already been tried ; and this new issue was, against the objection of Erskine, tried by a jury, which made a different finding of fact from the previous finding of the Circuit Court. On an appeal from the judgment on this verdict, it. was held that the Circuit Court committed error in reopening the facts for trial; and for this reason its judgment was again
In like manner we must hold in this case that, neither party having appealed to the Supreme Court upon a bill of exceptions embracing the evidence before the referee Farish, although either of them was at liberty to do so, the finding of this referee on the facts, confirmed by the Circuit Court, stands as a conclusive determination of the facts of the case. The decision of the Supreme Court, overruling all the objections of Gibson to the referee’s conclusions of law as confirmed by the Circuit Court, except his conclusions of law upon the facts found by him under the seventh exception, left every matter in the case untouched and concluded, and nothing was open for reinvestigation. This conclusion of law of the referee was that Gibson should be charged with $9,386.41, principal and interest, as loss which the estate had sustained by reason of his act in converting currency into gold. The decision of the Supreme Court, overruling every other objection which had been made to the judgment of the Circuit Court, was that this was an erro
In interpreting the mandate of a court of error, where its directions are not clear, the opinion of the court will be looked to for explanation (West v. Brashear, 14 Pet. 51), and the concluding mandatory words of an opinion will be interpreted with reference to, and controlled by, the preceding matter in the opinion. Thus, in Kennicott v. Supervisors, 16 Wall. 452, 471, which was a suit in equity, the Supreme Court of the United States, having settled the controversy substantially in favor of the complainants and contrary to the decree of the Circuit Court, concluded its opinion with the words, “The judgment must be reversed and a new trial had.” The mandate as sent down commanded ‘ ‘ that such execution and further proceedings be had in conformity with the opinion and decree of this court, as according to right * * * ought to be had.” The Circuit Court refused to reopen the case for further hearing, and its decision was affirmed by the Supreme Court. Supervisors v. Kennicott, 94 U. S. 498. “ Technically,” said Chief Justice Waite, “ there can be no ‘ new trial ’ in a suit in equity; and as our mandates are to be interpreted according to the subject-matter of the proceeding here, and if possible, so as not to cause injustice (Story v. Livingston, 13 Pet. 359), it is proper to inquire what must have been intended by the use of that term in the decree, since it cannot have its ordinary meaning. For that purpose we held in West v. Brashear, 14 Pet. 51, that resort might be
The only doubt which we have had was, whether Gibson, by entering into the contest of the merits of the seventh exception before the referee Holmes, did not waive his exceptions to the refusal of the Circuit Court to enter judgment in accordance with the opinion of the Supreme Court. Upon the best consideration we have been able to give, we are of opinion that his conduct did not amount to such a waiver. The reasons for the rule which requires a party demurring to a pleading to stand on his demurrer at his peril, or else abandon it by going to trial on the merits, seem to us not to apply here. Here, as Gibson was not entitled to a mandamus to compel the Circuit Court to enter judgment, he must either submit to the action of the court in reopening a protracted, expensive, and vexatious litigation, or else stand on his exception and abandon all further proceedings, and take the risk of the decision of an appellate court upon the question raised by his exceptions, at his
We reverse the judgment of the Circuit Court in this case, and remand the cause, with directions to the court to enter judgment in conformity with its judgment of June .23,1873, except so far as modified by the decision of the Supreme Court; which will be a judgment that the executor pay to the devisees and distributees, when, and as ordered by the Probate Court, the sum of $401.17, with interest at the rate of six per cent per annum from the twenty-third day of June, 1873. In conformity with the said judgment of the Circuit Court, the defendant Gibson will pay all the costs of this proceeding, both in the Probate Court and in the Circuit Court down to and including the entry of that judgment. Under section 1001 of the Revised Statutes, he is entitled to recover the costs of his appeal to the Supreme Court. The subsequent proceedings in the Circuit Court, having been erroneously taken, against his objection, and the judgment of the Circuit Court being reversed by this court upon his appeal, he is entitled to recover his costs in the proceeding upon, and subsequent to, the coming down of the mandate from the Supreme Court, except the costs by him expended in the petitipn to this court for a mandamus, which is to be treated as an independent proceeding. It is so ordered.