251 P. 1061 | Mont. | 1926
Citing: Kennedy v. Dickie,
The question now before the court is, however, foreclosed by the decision in the La France Case, holding that the prayer of the relator "cannot be granted for the obvious reason, as no specific declaration, either to retry or dismiss, was contained in the mandate of this court, the district court was vested with a legal discretion to take such action, not inconsistent with the order of the court, as seemed wise and proper under the circumstances," the opinion further holding that an unqualified reversal entitled plaintiff to another trial, citing California cases.
That a reversal in general terms is not a final decision disposing of the case on the merits is held by the great weight of authority. (Gazos Creek Mill L. Co. v. Coburn,
For the reason that the reversal and remand contained in the opinion of this court of February 28, 1921, and the direction in the mandate in said case, did not finally dispose of or order dismissal of the case, but remanded the cause for further proceedings in the discretion of trial court, the petition formandamus should be denied and the writ discharged. *599
The point is made by counsel for respondents that relator is here making application to this court to add something to its former decision not embodied therein, and that it is requesting this court to reassume jurisdiction of the case, and, in effect, make an additional decision disposing of it on the merits. This the court is without jurisdiction to do, for the reason that on the going down of the remittitur to the court below, the supreme court lost jurisdiction of the case, and cannot add anything to the remittitur or to the decision without recalling the remittitur, and this cannot be done unless mistake or fraud is shown. It has been so held in State v. Reece,
The statute above referred to is section 8805, Revised Codes of 1921, and provides: "The supreme court may affirm, reverse, or modify any judgment or order appealed from, and may direct the proper judgment or order to be entered, or direct a new trial or further proceedings to be had. * * * In equity cases, and in matters and proceedings of an equitable nature, the supreme court shall review all questions of fact arising upon the evidence presented in the record, whether the same is presented by specifications of particulars in which the evidence be alleged to be insufficient or not, and determine the same, as well as questions of law, unless, for good cause, a new trial or the taking of further evidence in the court below be ordered," etc.
The section was enacted in 1903 (Laws of 1903, 2d Extra Sess., p. 7), and later appeared as section 6253 of the Revised Codes of 1907. Referring to this statute, in Stevens v. Trafton,
And in Barnard Realty Co. v. City of Butte,
Again, in Bosanatz v. Ostronich,
Application of this statute has been made by this court in numerous other cases, some of which will be referred to in subsequent portions of this opinion.
As appears from the opinion of this court in case No. 4,272, entitled Comerford v. United States Fidelity Guaranty Co.,
Upon the appeal to this court this judgment was reversed and the cause remanded. After briefly stating the facts, outlining the plaintiff's contentions and setting out the conclusions of law made by the trial court, the opinion says: "Two questions are presented for decision, as follows: (1) Is the surety liable, under the conditions of the bond as executed, to pay the judgment affirmed on appeal? (2) Was a reformation of the bond justified? Both questions will be treated together, as they involve the same considerations." Incidental reference was made to the fact that the trial had proceeded in the lower court without requiring service to be made upon the Kennedy Construction Company, or its appearance therein, in these words: "The court should have required both obligors to appear, since the appellant insisted thereon, even though the plaintiff is given a several right of action against both the principal and surety."
The court then made an extended review of the testimony introduced at the trial and concluded the opinion in these words: "There is no showing of fraud, mutual mistake, nor the mistake of one party which the other at the time knew or suspected, and reformation of the bond was improper, and the judgment appealed from is without foundation. It is clear that the trial court was in error in finding, as a matter of law, that the surety company is liable upon the bond without reformation, and also that a reformation of the bond should be made *603 as prayed for, and in thereupon entering its final decree on the bond as reformed. The conclusions made by the trial court are inconsistent, and upon neither theory can the judgment be sustained. For the reasons stated, the judgment is reversed and the cause remanded."
This opinion was handed down by the court on February 28, 1921. No remittitur in the case was issued by the clerk of this court until April 6, 1923, when one was issued, to which was attached a copy of the opinion of the court, containing the following direction: "You therefore are hereby commanded that such further proceedings be had in said cause as according to right and justice and the laws of the state of Montana ought to be had not inconsistent with the opinion hereto attached." Thisremittitur was filed in the office of the clerk of the district court of Missoula county on April 7, 1923, and the clerk, as required by section 9753, Revised Codes of 1921, thereupon made an entry in the judgment docket in his office against the original entry of judgment, from which the appeal had been taken, as follows: "Judgment reversed and case remanded as perremittitur filed April 7, 1923." On October 23, 1926, the relator presented to the district court of Missoula county and Honorable Asa L. Duncan, one of the judges thereof, an application praying that a judgment be entered in the cause dismissing the same on the merits, in accordance with the judgment and decision of this court. This application was regularly heard before the district court and denied.
On October 25, 1926, relator filed in and presented to this court a petition praying that an alternative writ of mandate issue, requiring the said district court of Missoula county and the Honorable Asa L. Duncan, one of the judges thereof, to render judgment in said cause in favor of the relator, dismissing the same on the merits, or to show cause before this court why the same had not been done. The alternative writ was issued as prayed for, returnable on November 5, 1926, on which day the respondents filed a response setting forth the reasons *604
why the relator's request for a dismissal of the action on the merits had been denied, which may be summarized as follows: (1) That on December 1, 1922, an order was made in the district court of Missoula county dismissing said Comerford Case; that no appeal was taken therefrom and that it is now too late for the relator to invoke the power of this court by mandamus to compel respondents to grant the relief sought; that subsequent to the making of said order of dismissal on December 1, 1922, certain proceedings had been instituted in the United States district court for the district of Montana upon the original cause of action set out in the Comerford Case, which are still pending therein, and that because this court in case No. 6,043, entitledState ex rel. United States Fidelity Guaranty Co. v.District Court, ante, p. 214,
The matter was submitted for final decision upon the relator's petition and the return of the respondents thereto.
The statute (sec. 9848, Rev. Codes 1921) provides that the writ of mandate may issue to an inferior tribunal "to compel the performance of an act which the law specially enjoins as a duty resulting from an office."
We do not understand that there is any dispute between counsel[2] but that it is the province of a reviewing court to construe its own judgments, decrees and orders, and that, where a lower court has misconstrued its mandate, or has acted beyond its powers in construing the same, mandamus will issue to review and correct the action of the lower court. This authority is recognized everywhere. (38 C.J., p. 642, sec. 155.) The principle that, where the performance of a legal duty involves the exercise of judgment or discretion, such judgment or discretion cannot be directed or controlled by mandamus, is too well settled to require the citation of any authority to sustain it.
In case No. 6,043, above referred to, the parties to the present proceeding were before this court upon the relator's application for a writ of supervisory control to require the district court, among other things, to set aside the order dismissing the Comerford Case adverted to in the first subdivision of the respondents' response filed herein. The circumstances leading up to the making of that order are fully set out in the opinion rendered in said cause and need not be here repeated. We there held that said order was wholly null and void as having been made without jurisdiction, which appeared upon the face of the record. Upon a re-examination of the question we are satisfied that under our statute and the decisions of this court, as well as the authorities generally,[3] our conclusion was correct and should not be disturbed. The order being void and its invalidity appearing on the face of the record, it was but a "dead limb upon the judicial tree" which could bear no fruit to the plaintiff. It was a mere nullity and could neither *606 affect, impair nor create rights. As to the relator herein, it is not binding in any way and is subject to impeachment in any action, direct or collateral, and it was not necessary to take any steps to have it vacated, reversed, or set aside. (1 Black on Judgments, sec. 170.)
The fact that the plaintiff in the Comerford Case, after the making of this void order, commenced proceedings in another court upon an identical cause of action, and that they are still pending, does not at all affect the situation. The ComerfordCase is still pending in the district court of Missoula county, and we shall in another part of this opinion consider whether it now stands ready for trial, or whether it stands for final judgment.
With reference to the contention that it is the duty of the[4] clerk of the district court to enter the judgment in accordance with the mandate of this court in the ComerfordCase, our conclusion is as follows: It is not necessary in such a case, that the order reversing the judgment and remanding the cause, give specific directions as to the action which shall thereafter be taken in the lower court, but when the remittitur
is filed it becomes the duty of such court to examine the opinion and proceed in conformity with the views expressed in it. (People ex rel. Horberg v. Waite,
This brings us to a consideration of the main questions[5] presented in this proceeding. The relator contends that since under section 8805, supra, this court is required to review *607 all questions of law and fact on an appeal in an equity case and determine the same unless a new trial or the taking of further evidence in the court below be ordered (Barnard Realty Co. v.City of Butte, supra), so that final judgment may be expedited (Stevens v. Trafton, supra; Bonsanatz v. Ostronich, supra), and because in rendering the opinion in the Comerford Case the court did what the statute requires that it shall do and as a result determined that no recovery could be had upon the bond as written and that the evidence introduced at the trial was not sufficient to justify the reformation of that instrument, and since the order reversing and remanding the cause did not expressly direct a new trial or the taking of further testimony, this was a final decision and determination of the cause upon its merits, and therefore the lower court was not vested with any discretion under the mandate from this court and had no further jurisdiction of the cause except to enter a judgment dismissing it upon the merits.
Respondents, on the other hand, argue that because the court in its opinion in the Comerford Case instead of giving the lower court specific directions what to do, simply reversed and remanded it, upon the filing of the remittitur the parties were placed in the same situation that they occupied prior to the trial, and that it was within the discretion of the lower court to take such action therein as to it seemed best. We cannot yield to the argument of counsel for respondents.
That an action for the reformation of a written instrument and its enforcement after reformation is one in equity is an elementary proposition. "Reformation is not an incident to an action at law, but can be granted only in equity. When relief is granted also on the contract as reformed it means only that the court of equity sees fit to go on and finish the whole case." (United States v. Milliken Imprinting Co.,
Reverting now to the opinion of the court in the ComerfordCase, we find it declares that there were presented for consideration but the two questions: Whether plaintiff could recover upon the bond as written, and whether a case had been made to warrant its reformation and enforcement. Both of these matters were reviewed in the light of all of the evidence presented in the record. The questions of law involved were determined and applied to the facts, and as a result of such determination it was declared that the judgment could not be sustained upon either of the two theories advanced by the plaintiff. This was a clear compliance with both the letter and the spirit of section 8805, supra. No questions of fact or law other than those determined were presented in the record according to what is stated in the opinion. Under these circumstances the court did not order a new trial or the taking of additional evidence, but reversed and remanded the cause to the lower court.
What, then, was the duty of the lower court under the terms of the remittitur, "that such further proceedings be had in the cause as according to right and justice and the laws of the state of Montana ought to be had not inconsistent with the opinion hereto attached"?
Under the statute, the court could not retry the case or take any additional evidence because it had not been authorized to do so by this court. This court had determined all the facts and the law as the lower court should have determined them, and sent the cause back for further proceedings not inconsistent with that determination. Since under that determination the plaintiff had wholly failed to establish a right to recover, and the court was precluded from taking additional evidence or retrying the case, the only authority it then possessed was to make a judicial declaration that the plaintiff was not entitled *609 to recover from the defendant and to dismiss the cause upon the merits.
In the early case of Soule v. Dawes,
A like proposition was before the United States supreme court in the case of Re Sanford Fork Tool Co.,
The case of Kennedy v. Dickie,
We do not perceive any difference in legal effect between the mandate of the court in Kennedy v. Dickie, supra, and that contained in the opinion in the Comerford Case, for, as was said in People v. Waite,
The underlying reason for the rule declared by our statute and enunciated by the decisions above referred to is so clearly stated in Wadhams v. Gay,
But counsel for respondents say that the rule announced in the foregoing cases is in direct conflict with the decision of this court in State ex rel. La France Copper Co. v. DistrictCourt,
Finally, it is argued by counsel for respondents that the[6] suggestion in the opinion in the Comerford Case that the Kennedy Construction Company should have been brought in as a party defendant was under the mandate of the court an indication of necessity for a new trial of the action. However, it is a well-established rule that an appellate court will never order a new trial in an equity case for want of proper parties where it is apparent that the plaintiff has no cause of action. In 4 C.J., page 1197, it is said: "The case will not be remanded on reversal to supply a defect of parties where, taking the bill as true, it does not show complainant entitled to relief." And inShropshire v. Reno, 5 Dana (Ky.), 583, the court uses this language: "If the complainant has no equity, he has no right to bring any party into the court. And it would be worse than useless to direct the bill to be retained that he may have an opportunity of bringing parties before the court, when, upon the appearance of all the parties, the bill must be dismissed." Again, in Jameson's Admx. v. Deshields, 3 Gratt. (Va.) 4, the court said: "The reasoning and authorities of the appellee's counsel are quite satisfactory to establish that, where a plaintiff in equity has shown no right to relief, an appellate court will not reverse a decree dismissing his bill, to enable him to introduce new parties, and thereby make a new case upon the merits."
In view of the fact that this court had determined that the plaintiff in the Comerford Case was not entitled to prevail under either of the theories advanced, there was no reason for ordering a new trial, the only purpose of which would have been to open the case so that the construction company might have been made a party defendant. If this had been done and the case had been retried and a judgment for plaintiff entered, this court would, upon an appeal therefrom, have been obliged to again decide that there was no right of recovery. Therefore to have brought in the construction company as a party defendant would have been doing an idle thing. *614
Upon a consideration of all the matters presented to us we are led to the inevitable conclusion that the relator is entitled to the relief sought. It is ordered that a writ of mandate issue as prayed for in relator's petition.
Writ granted.
MR. CHIEF JUSTICE CALLAWAY and ASSOCIATE JUSTICES GALEN and MATTHEWS concur. *615