Cassell v. Fitzsimmons

McCulloch, J. — This case was before us on a former occasion, when we reversed the judgment of the circuit court and remanded the canse for further proceedings. A writ of error having been sued out from the Supreme Court to review our judgment, the same was reversed, and the case now comes before us upon a remanding order from that court, whereby tlii court is directed, “ that if it shall find the facts as found by the circuit court, to affirm the judgment of that court, but that if it finds the facts different from the facts as found by that court, to then render such judgment upon the facts thus found as the law shall require, and recite the same in its final judgment, as directed by .the statute.” We have again carefully examined the record, and find no reason to depart from what we said on the former hearing respecting the correctness of the findings of the court below. Cassell v. Fitzsimmons, 6 Bradwell, 525. We did not then consider the case as one calling upon us to make a final determination thereof upon a finding of facts, and therefore simply reversed the judgment of the court below, and remanded the cause for further proceedings. Where the judgment of the court below is founded upon the verdict of a jury or the finding of the court upon issues at law, wherein no special finding of facts is required to be spread upon the record, it would be very difficult, if not quite impossible for this court to ascertain what facts were found by the court below, and, consequently, quite as difficult for this court to say that its findings of facts were different from those of the court below. In such cases we are not disposed to even seem to invade the province of the trial court. We do not understand the order of the Supreme Court as a peremptory one to proceed to a finding of the facts, and being clearly of the opinion that the circuit court did not find in accordance -with the decided preponderance of the evidence, we avail ourselves of the discretion left open to us by the directions of the Supreme Court, and reverse the judgment of the circuit court, and remand the cause for a new trial. Reversed and remanded.