Duffitt & Ramsey v. Crozier

The opinion of the court was delivered by Hobton, C. J.: After the decision in Duffitt v. Tuhan, 28 Kas. 292, a mandate was sent to the court below, directing it to enter judgment upon the findings of fact in that case in favor of the plaintiffs in error. These parties presented in open court to the judge thereof this mandate, and requested the court to render judgment in' accordance therewith. Pending this motion, Ellen Tuhan moved the court for leave to introduce further evidence, and for further findings in the case. To the hearing of this motion Duffitt & Ramsey objected. The court overruled their objection, and sustained the motion of Tuhan. Thereupon Tuhan and one J. C. Douglass were produced as witnesses. Theiy evidence, however, was immaterial and irrelevant. It really amounted to nothing, and sustained no issue in the cause. The court then found the following fact in addition to its facts heretofore found: “That the said R. D. Callaghan, at the time of the tax sales and deed heretofore found in this case were made, had knowledge of the making of the same and of the record of the said tax deed; and that no proceedings were had or taken by him to annul or set aside said tax sales or deeds for more than two years after his knowledge of the taking of said tax deeds by said plaintiff to herself, nor at any other time.” The court stated as a conclusion of law, on the facts heretofore and at said time found, that Ellen Tuhan is entitled to recover the premises mentioned in her petiti®n. Subsequently, upon the application of Duffitt & Ramsey, an alternative writ of mandamus was issued from this court, requiring the judge of the court below to comply with the mandate issued by this court, or to show cause why he had [152] not done so. The answer of the judge sets forth the proceedings of the district court subsequent to the filing of said mandate, and also alleges that said proceedings were done and had in accordance with the rulings and decisions of this court as • understood by him, and in furtherance of justice. The question before us, therefore, is, whether upon the record and the agreed facts the district court must be required to enter the judgment directed by the mandate. When the case of Duffitt v. Tuhan was brought into this court by a writ of error, the whole record was brought up, and the judgment of this court, going to the whole merits of the case, was rendered upon the findings of fact specifically stated by the district court. Thereupon, a mandate was sent to the court below, directing it to render the judgment it should have rendered on the facts found in the case; and as no matters arising subsequent to the decision of this court were called to the attention of the trial court when the motion was made for entering judgment upon the mandate, and as no new or additional facts were presented to that court, the duty devolved upon the court to render judgment so as to conform to the mandate. (Gunter v. Laffin, 7 Cal. 588; Argenti v. San Francisco, 30 Cal. 458; McMasters v. Blair, 31 Pa. St. 467; Comp. Laws 1879, ch. 27, §7; Code, §599; Ex parte Sibbald, 12 Pet. 492; Ex parte Dubuque & Pac. Rld. Co., 68 U. S. 69.) The evidence introduced does not sustain the new or additional finding of fact, and the court below had .no power within the direction of the mandate of this court to grant a new trial, or to go back to the evidence produced upon the first trial and therefrom make an additional finding, so as to uphold and cure a judgment which this court pronounced erroneous and reversed. The district court had no power to set aside the judgment of this court; and its authority upon the record extended only to executing the mandate. Counsel for defendant allege that the action of the district judge was warranted by the language used by this court in Conroy v. Perry, 26 Kas. 473. Counsel have evidently an [153] erroneous conception of that case. It was stated therein that the district court, when instructed by this court to enter a specific judgment in a case reversed, may, upon a new and different presentation of facts, give rights to either party, and proceed to inquiry and judgment thereon; but this discretion can be exercised only upon the presentation of new facts. When a case is heard upon proceedings in error in this court, and the merits of the case are passed upon and the judgment of the inferior court reversed with direction for the entering of a judgment, the case is not to be retried by the trial court upon the old facts; nor is the defeated party permitted to introduce other facts which ought and might have been presented upon the original trial. On the proceedings of the district court subsequent to the filing of the mandate in Duffitt v. Tuhan, no additional or new facts were presented to justify the court’s action. The pleadings were not changed, no supplemental petition was filed, no affidavits were read, and the evidence offered was not worthy of consideration. Again, in Conroy v. Perry, supra, the district court held the supplemental petition to be insufficient, and therefore the rights of Perry were in no way prejudiced by the leave given to file the supplemental petition. Further, the final judgment rendered therein by the district court was the judgment substantially directed by this court in the mandate sent to that court. Where cases are decided by this court upon the facts found by the trial court, and the judgment of the inferior court is reversed, and a mandate sent to that court to fender judgment upon the findings for the defendant, and no new or additional facts are presented, within the rule stated the duty is east upon the court below to carry out the direction of the mandate. If the district court, under such circumstances', does not carry the judgment into execution according to the mandate, a mandamus will issue from this court ordering the mandate to be obeyed. It is therefore ordered, that a peremptory writ of mandamus issue to the judge of the district court of Leavenworth county, commanding that judgment be rendered in accordance [154] with the mandate of this court, a copy of which is set forth in the answer of this case. Valentine, J., concurring.