Rushing v. Horner

204 S.W. 1145, 135 Ark. 201, 1918 Ark. LEXIS 414

• Court: Supreme Court of Arkansas
• Decided: July 8, 1918
• Status: Published

Opinion

WOOD, J.,

(after ¡stating the facts). The only-question presented by the appellant on this appeal is that the court erred in permitting appellees, John Hornier, Louise Horner and Zena Horner to file a disclaimer after the cause was remanded under the directions contained in the mandate of this court. They say that the directions given “were in effect for the court to ascertain the amount of money that should be decreed to plaintiffs, if any, upon an adjustment of the rights of the parties as to the rent and betterments and for that purpose to permit further proof to be taken by either party.”

We can not agree with appellants in .their construction of the opinion of this court on the former appeal and the direction given to the trial court, as contained in the mandate. The directions were, “for a new trial with privilege to either party to make.further proof.” While this court found that “the cause was not fully developed with reference to rental value, net profits and betterments,” it did not direct the court to require the parties to limit the proof to these matters only, nor was there any direction as to what decree the trial court should render on the issue as to the ownership, the right of possession, rental value, profits, betterments, etc.; but on the contrary the direction was for a new trial.

When a cause is remanded broadly for a new trial, all the issues in the case are open for trial anew, the same as if there had been no trial. “The case stands as if no action had been taken by the lower court. ’’ Hartford Fire Ins. Co. v. Enoch, 79 Ark. 479; Schofield v. Rankin, 86 Ark. 86-90.

Our statute defines a new trial as .“A re-examination in the same court of an issue of fact, after a verdict by a jury or a decision by the court.” Kirby’s Digest, see. 6215. While this is generally held to apply to actions at law, and while under the chancery practice a new trial is seldom directed, yet there is nothing in our bode of practice prohibiting this court from directing a new trial in a chancery case as well as in a trial before a law court. On a reversal of a cause by this court it seldom occurs that the same is remanded for a new trial, but when such is the direction of this court, then the case stands for trial precisely the same as if there had never been any trial. The court correctly interpreted the opinion of this court on its former appeal and followed the directions contained in its mandate. There is no error in the decree and it is therefore affirmed.