Bertig Bros. v. Independent Gin Co.

• Citation: 228 S.W. 392
• Decision Date: 07 March 1921
• Docket Number: (No. 212.)
• Parties: BERTIG BROS. v. INDEPENDENT GIN CO. et al.
• Court: Arkansas Supreme Court

228 S.W. 392

BERTIG BROS. v. INDEPENDENT GIN CO. et al.

(No. 212.)

Supreme Court of Arkansas.

March 7, 1921.

On Motion to Modify, March 21, 1921.

Certiorari to Circuit Court, Greene County; R. H. Dudley, Judge.

Action by Bertig Bros. against the Independent Gin Company and another. Judgment for defendants, and plaintiffs bring certiorari. Writ of certiorari quashed, and judgment affirmed.

Huddleston, Fuhr & Futrell, of Paragould, for appellants.

Block & Kirsch, of Paragould, for appellees.

McCULLOCH, C. J.

Appellants were the plaintiffs below in an action against appellees to recover damages alleged to have resulted from furnishing false samples of baled cotton. The trial of the cause resulted in a verdict and judgment against appellants, who prosecuted an appeal to this court. This court reversed the judgment of the circuit court and remanded the cause for a new trial. 220 S. W. 669. The judgment of reversal was rendered on April 12, 1920, and on October 11, 1920, the parties waived the issuance and filing of the mandate of this court and proceeded to a retrial of the cause in the circuit court. The second trial resulted in a judgment against appellants, and they now attempt to bring the record of the last proceedings before us by certiorari to quash the judgment.

The contention is that the judgment is void for the reason that the circuit court, notwithstanding the waiver of the filing of the mandate, could not and did not acquire jurisdiction to retry the cause. They rely in this contention on decisions of this court holding that on the reversal of a judgment the lower court acquires jurisdiction by the filing of the mandate in that court. Lafferty v. Rutherford, 10 Ark. 454; Hollingsworth v. McAndrews, 79 Ark. 185, 95 S. W. 485; Bowman v. State, 93 Ark. 168, 129 S. W. 80. In neither of those cases did the question arise as to the effect of an express waiver of the filing of the mandate. It is undoubtedly true that a trial court loses jurisdiction when an appeal is taken from its judgment, and it reacquires jurisdiction only on the reversal of the judgment by the appellate court and the filing of a mandate of reversal; but the written mandate is merely the evidence of the action of the appellate court, and this may be waived by the parties themselves. This is not a case of an attempt to confer jurisdiction by consent, but is merely a waiver of the formal evidence of the jurisdictional fact. The waiver itself presupposes that the Supreme Court had entered the judgment of reversal and ordered a remand of the cause for further proceedings. Therefore the parties had the power to waive the written evidence of those proceedings.

The writ of certiorari is therefore quashed, and the judgment of the circuit court affirmed.

On Motion to Modify.

We are asked to modify the judgment of this court, by eliminating the affirmance of the judgment of the circuit court, leaving in force only that part of our judgment which quashes the writ of certiorari, so that appellants will be left free to prosecute an appeal from the judgment of the circuit court. They say that there are errors in the record of the trial below, which will be brought before us for review in a bill of exceptions,...