41 Mo. 574 | Mo. | 1867
delivered the opinion of the court.
This is a petition for a mandamus upon the St. Louis Circuit Court. It is stated that upon the filing of the mandate .from this court in the case of Allen v. Berry et al., 40 Mo.
The judges make return “ that it is not the practice of the court to enter up judgment without a rehearing of the cause, where it has been reversed and remanded, according to the judgment and mandate of the Supreme Court in such cases, and that there liad been no such rehearing of the cause.” The case is submitted on a demurrer to this return.
The case of Allen v. Berry et al. was a suit in equity, and upon a hearing of the cause in this court on appeal from the St. Louis Circuit Court, the judgment was reversed and the cause remanded. No other decree was rendered in this court. No special directions were given in relation to further proceedings in the court below, beyond the questions determined and the principles laid down in the opinion.
The petitioner insists that the court below shall be required to enter up judgment for the plaintiff in said cause, according to the decision of this court, without opening the case for further evidence, and without a rehearing in that court.
This motion proceeds upon an entire misconception of the laws and practice in this State in equity cases. The statute of 1855, relating to practice in the Supreme Court, provided that this court “in appeals, or writs of error, shall examine the record, and award anew trial, reverse or affirm the judgment or decision of the Circuit Court, or give such judgment as such court ought to have given, as to them shall seem agreeable to law”—R. C. 1855, p. 1301, § 35. This statute was not reenacted in the revision of 1865, otherwise than as it was incorporated into the chapter (135) concerning the District Courts, in which the particular section, like nearly all the rest,
The practice acts of 1849, 1855, and 1865, have in a great measure, if not altogether, superseded the practice in chancery of the code of 3845, and have, to a large extent, though not entirely, assimilated the forms of proceeding in equity to those in cases at law, without abolishing the distinctions in principle between common law and equity jurisprudence. Nor have the differences in the modes of proceeding been wholly abolished, but they are in many respects expressly recognized by the existing practice act, and are embodied in its provisions. The pleadings are to be the same in form, but may be different in the contents. Issues of law or fact are to be made up in general in the same way in both classes of cases (ch. 169, §§ 1-4) ; the distinction between trials by jury and trials by the court is preserved, and particular issues may be made up and sent to a jury for the purpose of taking the opinion of the jury upon any specific question of fact involved in the case, as in the former equity practice (§§ 11-13; Conran v. Sellew, 28 Mo. 320); the evidence is to be produced under the same rules and preserved in the same way by bill of exceptions; exceptions, bills of exceptions, new trials, and appeals, are governed by the same provisions (ch. 172); and all cases are to be set for trial in the same manner. Under the practice act of 1845 (in chancery), an equity case was specially set down for a hearing at the next term after the cause was at issue, and witnesses were examined orally, and depositions were read, in the same manner as at law, but provision was made that all the testimony should be reduced to writing on the trial and preserved in the record, and the cause was heard in this court upon appeal upon the pleadings and the evidence thus preserved. The practice of taking all the testimony in written depositions, and making publication of the depositions taken, and closing the case against the in
In Knowles v. Morris, 16 Mo. 455, the evidence was preserved by a bill of exceptions ;• the court was not satisfied that the decree was correct, nor could they proceed to render a proper decree upon the record as it was ; and it was said by Gamble, J., that “the appeal in chancery brings the w^role case before the com-t upon the law and the facts, and the decree to be rendered here when the whole case is properly presented, is, in general, a final decision of the cause ;
In such case, the opinion may settle the principles by which the case is to be governed, and directions may be given, in suitable cases, as to the proper course of proceeding in the case ; and it is to be presumed that the court below would consider itself in duty bound to follow the principles determined and to pursue the directions given ; but this court cannot direct the inferior court what judgment it shall pronounce in the exercise of its original jurisdiction. That must be the judicial act of the Circuit Court itself. Nor can the Circuit Court proceed to give judgment without a hearing. Nor is there any law to preclude either party from offering such evidence upon the new hearing as may be competent and admissible. There is no such thing in our practice as a final closing of the evidence upon publication passing.
It is considered that the authorities which have been cited from other States where the practice in chancery is governed by different statutes, or by the English chancery practice, have no application here upon this question. Nor are the cases of bills of review, or supplemental bills, for the correction of decrees rendered and still remaining unreversed,
In the case of Miner v. Medbury, 7 Wis. 100, two motions were made in the appellate court, one for a rehearing, and the other for an amendment of the remittitur, by adding a direction to the court below to enter judgment according to the decision. Both motions were overruled. It was said that the court would presume that the inferior court would proceed to carry out the judgment according to the views expressed in the opinion ; and it was denied that the case would be open for further testimony and for a trial de novo. It was said that the court below ought to .proceed to final judgment in conformity with the decision, without reopening the case for new testimony, and that the practice in Wisconsin remained “ essentially the same in what were equity cases, since the adoption of the code.” However that may have been in that State, it is very certain that no such practice has existed hitherto in this State, or can exist here, under the statute laws. On the contrary, when the case is simply reversed and remanded for a new trial and a new judgment, it is to be heard as before upon such evidence as either party may have to offer, upon the matter which is to be so heard anew.
The peremptory madamus is refused.