137 Ky. 472 | Ky. Ct. App. | 1910
Opinion op the Court by
Affirming.
In the year 1884 appellees instituted an action in rlie Knott circuit court against appellant to recover about 36 acres of land, and for a sale of it and a division of the proceeds. The case was tried and judgment rendered in favor of appellees on April 8, 1893. An appeal was prosecuted to this Court, and in the month of October, 1897, this court reversed that judgment, and the case was “remanded with directions to award appellant a new trial, and for further proceedings consistent with this opinion.” 42 S. W. 730, 19 Ky. Law Rep. 1052. The mandate was filed in the lower court, and the case remained on the docket until the month of November, 1902, when it was again tried and another judgment rendered in behalf of appellees. (In the meantime, however, additional proof had been taken). In that judgment the following recital appears: “The court advised is of the opinion that the evidence introduced by plaintiffs since the return of this cause from the Court of Appeals overturns the conclusion that a divisional line was ever made between the lands claimed by plaintiff and that claimed by defendants.” No part of the record of the case referred to is copied into this record, except the two judgments cited and one or two orders of continuance of the case. We have no information as to whether that case was prosecuted in equity or at law, except the statement of appellant’s counsel in their brief and in their notice of their motion in the case at bar. No brief has ever been filed for appellees. There are some
If the action referred to was prosecuted as a common-law action, there can be no question of the right of the lower court in giving appellees a new trial after the -reversal by this court, and they had the right to introduce any and all evidence they desired. But if it was an action in equity, and we will so treat it, the court improperly allowed the introduction of other evidence. It should have entered an -order dismissing appellees’ action, because the opinion by this
For these reasons, the judgment of the lower court is affirmed.