This is an action of mandamus сommenced in this court to compel the Honorable J. C. Ludwig, as judge of Branch Ho. 4 of the circuit court for Milwaukee county, to reverse аn order granting a new trial in the case of Kurath
The case of Kurath v. Gove Automobile Co. was decided by this court January 10, 1911. It was held, among other things, that the motion for a new trial, not having been continued under sec. 2424, Stats. (1898), as amended (Supp. 1906: Laws of 1905, ch. 6), and not having been decided by the court during the term, and the рrovisions of sec. 2878 not having been waived by the parties, was overruled by operation of law, and the order of the circuit court granting a new trial, made after the term, was reversed. As the case then stood, after the reversal of such order, with a special verdict in favor of рlaintiff, it was evident that further proceedings must be had in the trial court, and so the case was remanded for further proceedings according to law. Upon a return of the record to the trial court, application was made by the defendant and leave granted to correct the court’s minutes by inserting the portions hereinabove quoted. On the 21st day of April, 1911, the defendant herein made due return to the effect that the entriеs made to correct the court’s minutes set out above were in accordance with the facts and that the fur
Though there is a sharp conflict in the proof as tо whether or not the corrections of the minutes are in accordance with the facts, we can assume, for the pui’poses of this case, that they are. Neither counsel for plaintiff nor this court for a moment doubts the good faith of defendant in doing the acts complained of; and his long and useful services as a trial judge sufficiently refute the idea that he would knowingly or intentionally violate any mandate of this court. The questiоn presented is simply one of power. Can a trial judge, after an appeal to and a decision by this court in a case tried beforе him, so change his minutes and record, granting it is in accordance with the facts, as to supersede the judgment of this court? It is evident that if it appeаred as a fact that the provisions of sec. 2878, Stats. (1898), were waived by the parties, then the order of the court granting a new trial, made after thе term, would be valid. Hinton v. Coleman,
“In the case of Second Nat. Bank v. Smith, 118 Wis. pаge 18, at page 25, the court discusses the effect of this amendment to section 2878, which is chapter 100 of the Laws of 1901, saying:
“ ‘Its object, evidently, is to protect the parties to the action, not the public; to expedite business and to insure the appellant against difficulty or embarrassment, likely to result from inaction or neglect by the trial court.’
“The court held in this case that the provision was waived by the parties. There is no such waiver in this case, nor can any be implied.”
But it is urged by defendant’s counsel that, since the case was remanded for further proceedings according to law, it was within the power of the trial court to take such stеps as it might deem proper and according to law, and he cites Finney v. Guy,
“In this case, upon the overruling of the demurrer, the cause was remanded Tor further proceedings according to law.’ This placed it again in the control of the trial court to ascertain and decide what'the law might be in any future attitude the case might take, guided and controlled, of course, so far as this court had spoken, by the law laid down in its opinion. After the remission of the case, it was possible for*389 the circuit court to decide either rightly or wrongly as to the law, and therefore as to the stеps that should he taken or decisions that might be rendered. Its decisions were not those of this court, but its own, and subject to review upon appеal as in other cases.”
It will be noted that what is there said relates wholly to any future attitude the case might take. In the Kurath Case the question of a new trial was a closed chapter when the remitti-tur reached the trial court. Upon that subject there could bе no future attitude of the case. That subject had been litigated as far as it could be, and the judgment of this court disposed of it finally. But after judgment for plаintiff should be entered by the trial court the case would then stand subject to any right the defendant might have by appeal or otherwise, and hencе the mandate was for further proceedings according to law. There was no judgment to affirm or reverse, and a mandate directing the trial сourt to enter judgment for plaintiff might be construed as an adjudication by this court that such judgment should be considered absolute and final.
It is also urged that mandamus is not the proрer remedy. But it can hardly be seriously contended that this court cannot enforce or protect its own decrees by mandamus in view •of the decisions in State ex rel. Fourth Nat. Bank v. Johnson,
By the Court. — Judgment is ordered that a peremptory writ of mandamus issue directing the defendant to do the acts prayed to be done in the petition, but without costs.