Kuenzli v. Burnham

Cassoday, C. J. Tbe liability of Clinton Burnham to bis wife, Anna, for rents and profits was not in issue nor adjudicated on the former appeal; much less was tbe liability of tbe sureties on tbe bond mentioned. After providing in a general way for tbe mandate from this court, tbe statute declares that: “In all cases tbe supreme court shall remit its judgment or decision to tbe court from which tbe appeal or writ of error was taken, to be enforced accordingly; and if from a judgment, final judgment shall thereupon be entered in tbe court below, in accordance therewith, except where otherwise ordered.” Sec. 3071, Stats. 1898. In strict accordance with that statute, this court, on tbe former appeal, reversed tbe judgment of tbe trial court, and remanded tbe cause “with directions to enter judgment dismissing tbe complaint.” Burnham v. Burnham, 119 Wis. 509, 516, 97 N. W. 176, 179. Such being the mandate, it became tbe duty of tbe trial court, in obedience thereto and to tbe statute quoted, to enter in that court “final judgment” “in accordance” with such mandate. In fact it bad no power or authority to enter any different judgment in this action than thus prescribed. This has, in effect, been repeatedly declared by this court. Patten P. Co. v. Green Bay & M. C. Co. 93 Wis. 283, 291, 66 N. W. 601; Crowns v. Forest L. Co. 100 Wis. 554, 76 N. W. 613; Ean v. C., M. & St. P. R. Co. 101 Wis. 170, 76 N. W. 329; Bloor v. Smith, 119 Wis. 163, 96 N. W. 544. Counsel seek to justify tbe judgment entered on tbe ground that no objection was taken to tbe practice pursued nor tbe proceedings before tbe referee. It may be that tbe sureties, as well as tbe estate of tbe deceased, were willing to investigate as to tbe true amount due to Arma on tbe bond, with a view to settlement without further litigation. Whatever may have been tbe motive, it is quite evident that there was no voluntary submission of tbe controversy, as prescribed by tbe statute. Sec. 2788, Stats. 1898. Even bad there been such [483] submission it could not have authorized judgment in this action contrary to the mandate of this court. By the Court. — The judgment of the circuit court is reversed, and the cause is remanded with direction to obey the mandate of this court on the former appeal, and “enter judgment dismissing the complaint.”