Bloor v. Smith

Cassoday,' C. J. Thus it appears from the recitals in the order that the trial court refused to execute the mandate of this court merely because the 'appellant did not sooner ask the court to do so, or because the appellant did net voluntarily comply with the conditions therein mentioned before the circuit court had fixed a reasonable time within which she must perform such conditions. True, she might have applied to that court to fix such time several months before the time she did. It is equally true that the plaintiffs might have applied to the circuit court to fix such time immediately after the remittitur was filed therein, or any time thereafter. So the court, in obedience of the mandate, might have fixed such time without any application from either party. The delay in making the application is no more the fault of the appellant than of the plaintiffs. The mandate only required the appellant to perform the conditions named “within a reasonable time, to be fixed by the circuit court.” In other words, the circuit court was, by the "mandate, required to fix such reasonable time before the appellant could be adjudged to be in default for failure to perform such conditions within the time to be so fixed. The conditions to be performed by the appellant in order to entitle her to relief were stated in the opinion of the court on the former appeal in these words: “The terms which should be imposed as condition of the relief to appellant should substantially reimburse plaintiffs the reasonable and necessary expenses incurred in entering the judgment which must be vacated.” Bloor v. Smith, 112 Wis. 353, 87 N. W. 874. The items making up-the amount are there given. The trial court had no alternative, therefore, but to execute the mandate of this court. This has, in effect, been held in numerous cases. Patten P. Co. v. Green [166] Bay & M. C. Co. 93 Wis. 283, 66 N. W. 601, 67 N. W. 432. In tbat case it was beld tbat: “Where this court, on reversing a judgment, remands the cause, 'with direction to enter judgment in accordance with the opinion/ and tbat opinion leaves nothing undetermined, the trial court should merely enter the judgment as directed, and should not allow any amendment to the pleadings or new litigation in the case.” See Ean v. C., M. & St. P. R. Co. 101 Wis. 169, 76 N. W. 329; Baines v. Janesville, 103 Wis. 103, 79 N. W. 29. By the Court.- — The order of the circuit court is reversed, and the cause is remanded with direction to execute the mandate of this court, as required on the former appeal, and for further proceedings according to law.