71 Neb. 102 | Neb. | 1904
Lead Opinion
The defendant in error brought suit in Logan county
In the opinion above referred to, the parties are designated as plaintiffs in error and defendant in error, and
This case was before the lower court without direction as to what steps it should take as a court of equity in the premises, and we are clearly of the opinion that, after its judgment in favor of the plaintiff in the action was reversed, the trial court had power, in the furtherance of justice, to allow a retrial of the issues made by the pleadings. It is not uncommon for courts to allow a party, either plaintiff or defendant, to withdraw a rest and proceed with further evidence. We think the trial court had discretion to do so in this case, notwithstanding anything contained in the judgment of this court. There is nothing-in the record to indicate upon what application or showing the trial court based its action, and we can not say that it abused its discretion in pursuing the course it did. If the court had a right to exercise such discretion, then,
We therefore recommend that the judgment of the district court be affirmed.
By the Court: The conclusions announced in the foregoing opinion are approved, and it appearing that the adoption of the recommendation made will result in a right determination of the cause, it is ordered that the judgment of the district court be
AFFIRMED.
Rehearing
The following opinion on motion for rehearing was filed June 9, 1904. Rehearing denied:
Upon this motion for rehearing, it is urged that the opinion upon which the decree of the district court was reversed, when the cause was here upon the first appeal, must be looked to and construed in determining the effect of the judgment of reversal then entered. The position can not be maintained, because the opinion was not made official; the reasons for reversal given by the commissioner were not adopted by the court; the conclusion only was approved. By'the judgment entered, the decree of the dis
The rule of practice of some courts is that, in reversing a decree in equity of a loAver court, the appellate court will give specific instructions to that effect if the condition of the case requires a further hearing in the lower court; and, if no such specific instructions are given, the trial court has no authority to further investigate the merits of the case. The rule of this court is that, unless a decree is entered in this court, or specific instructions are given, that is, when the case is reversed and remanded generally, the district court is to exercise its discretion in the further disposition of the case, consistent, of course, with the judgment of this court and the laAV of the case as expressed in the opinion. Gadsden v. Thrush, 72 Neb. 1. An unofficial opinion of a commissioner is not the opinion of the court. The law of the case, then, is to he derived from the judgment of the court, and the questions of laAV necessarily involved in the conclusion reached. Upon the first appeal the court adopted the recommendation of the commissioner, reversed the decree of the district court, and remanded the cause generally, Avithout specific instructions. This left it to the discretion of the trial court to take such further proceedings as justice and
The motion for rehearing is overruled.
REHEARING DENIED.