Champion v. Rice

OPINION OF THE COURT. MANN, J. — This cause has been before this court twice before in different forms (Rice v. Schofield, 9 N. M. 314; Flournoy, et al., v. Bullock, et al., 66 Pac. 547.) In the latter case a mandate was issued out of this court to the district court of Bernalillo county, the command of which said mandate is as follows: • “Now, therefore, you are hereby commanded to reinstate said cause upon your docket and sustain the first exception of Appellant Rice, to the report of the referee, and dismiss the intervention The mandate was filed in the office of the district clerk of said Bernalillo county, on March 1, 1902,^ and on said day an order was entered and filed reinstating said cause on the docket of said court, sustaining the first exception of said Alfred W. Rice, to the report of the referee in said cause of Rice v. Schofield, et al., and dismissing the intervention. Proceeding, the order of the court below, after dismissing the intervention, says: “And thereupon the said Champion, by his said attorney, prays the court for leave to file a petition herein, to conform to the views of said Supreme Court as set forth in its opinion in pursuance of which judgment was entered in that court directs that notice of such application be served'on counsel for said Alfred W. Rice for the time prescribed by 'the rules of the court, together with a copy of the proposed petition which said Champion desires to file.” On November 5, 1902, 'the court granted appellant leave to file an amended petition of intervention, conforming, as was claimed by the appellant, to the views of the Supreme Court in the opinion in Bice v. Schofield, 66 Pac. 547. On February 29, 1904, the district court entered an order dismissing the amended petition of intervention filed under the order of November 5, 1902, and from said order dismissing the amended petition of intervention, appellant appeals to this court. • We are of the opinion that the order of the district court dismissing the intervention, being in the exact words of the mandate of this court, was final, and to all intents and purposes the same as though it had been made directíy by this court. Stewart v. Salamon, 97 U. S., 362; U. S. v. Fremont, 18 How. 36; Humphrey v. Baker, 103 U. S. 736; MacKall v. Richards, 116 U. S. 47. In Stewart v. Salamon, supra, the supreme court of the Hnited States, speaking through Mr. Chief Justice Waite, says: “This is an appeal from a decree'entered upon our mandate. No complaint is made as to its form, and it. seems to be in all respects according to our directions. The effort of the appellant was to open the case below and to obtain leave to file new pleadings, introdu-. cing new defenses. This he could not do. The rights of the parties in the subject matter of the suit were finally determined upon the original appeal, and all that remained for the circuit court to do was to enter a decree in accordance with our instructions and carry it into effect.” ■ The above quotation appears to fit the case at bar, exactly. . The mandate in this cause was clear and unambiguous. Champion’s status was established by the judgment of this court on the former appeal, and his effort was “to open 'the case below and obtain leave to file new pleadings introducing new defenses.” The order of the lower court followed the mandate verbatim; and we think that when the intervention was so dismissed the lower court was powerless to act further in the case. That an appeal will not lie from an order of the lower court in accordance with the mandate from the appellate court seems to be the universal rule and supported by numerous authorities. Ex-parte Story 12 Peters, 339; Aspen Min. Co., v. Billings, 150 U. S. 31; West v. Brasheor, 14 Peters 54; Clark v. Keith, 106 U. S. 464; and many others. The judgment of the lower court dismissing the intervention is affirmed. William J. Mills, C. J., Prank W. Parker, A. J., John E. McEie, A. J., Wm. H. Pope, A. J., concur. Abbott, A. J., took no part in this decision.