McClung v. Harris

Opinion of the court by Burwbll, J.: This is an action of mandatory rtrjunc-tion from the district court of Kay county, and comes here ■ a second time on appeal, having been considered by this, court at the January, 1901, term, and in the opinion then handed down the trial court was directed to enter a certain'. *65 judgment. When the mandate from this court reached the court below, the plaintiff presented an amended petition, setting np facts which occurred prior to the trial of the original case appealed to this court, and asked leave to file the same, and to be permitted to litigate the additional matter set up in such amended petition. The plaintiff’s application to amend was denied, and from this order and the judgment entered by the district court, pursuant to the mandate from this court, plaintiff appeals, and the defendant in error moves the dismissal of such appeal. In our judgment the motion should be sustained. It was the duty of the plaintiff to plead all of the facts which would afford him any relief in the case when it was tried the first time in the court below. This court took the record as it found it, and from the record the defendant was clearly entitled to the relief granted, and under the facts disclosed by the case-made, in equity and under the authorities, no other judgment should have been rendered. The trial court, under the mandate, had no discretion in the premises and, therefore, this appeal should be dismissed at the cost of appellant. (Stewart v. Salamon, 97 U. S. 361; Durant v. Essex County, 101 U. S. 555; Mackall v. Richerd, 116 U. S 45.) It is so ordered. Hainer, J., having presided in the court below, not sitting; all the other Justices concurring.