Fanning v. Doan

• Decision Date: 15 November 1898
• Citation: 146 Mo. 98,47 S.W. 896
• Parties: FANNING v. DOAN.
• Court: Missouri Supreme Court

47 S.W. 896

146 Mo. 98

FANNING v. DOAN.

Supreme Court of Missouri, Division No. 1.

November 15, 1898.

APPEALS — EJECTMENT — CARRYING OUT MANDATE OF APPELLATE COURT — INCIDENTAL STEPS.

While the rule is that, where a cause has been remanded with a direction to the trial court to enter a certain judgment, the jurisdiction of the trial court is limited to the precise action which it is authorized by the mandate to take, yet, where a cause in ejectment is remanded with direction merely to enter up judgment for plaintiff for the premises, the trial court may include damages, rents, and profits as found by a jury, as incidental steps necessary to carry the mandate into execution, since Rev. St. 1889, § 4641, provides that in case plaintiff prevails in ejectment the judgment shall be for the recovery of the premises, the damages assessed, and the accruing rents and profits from the time of rendering the verdict until the possession of the premises is delivered to plaintiff.

Appeal from circuit court, Grundy county; P. C. Stepp, Judge.

Ejectment by John H. Fanning against Sarah A. Doan. From a judgment for plaintiff, defendant appeals. Affirmed.

Harber & Knight, for appellant. A. H. Burkholder and Hall & Hall, for respondent.

WILLIAMS, J.

This case is here for the third time. It is an action of ejectment. Upon the last appeal the judgment below was reversed, "and the cause remanded to the circuit court with directions to enter up judgment in favor of the plaintiff for the undivided one-fifth of the premises described in the petition." Fanning v. Doan, 139 Mo. 392-416, 41 S. W. 742. When the case came up again in the circuit court, the mandate of this court was presented; and the plaintiff asked that judgment be rendered awarding him possession of an undivided one-fifth of the land, and, as incident thereto, that the damages, rents, and profits be assessed and included in said judgment. The defendant interposed an objection to the assessment of damages, rents, and profits, on the ground that the trial court had no power to do anything in the case beyond that which it was directed to do by this court; that its jurisdiction was limited to entering judgment in the manner and form prescribed in the mandate, which only authorized a judgment for possession of the land. This was overruled. A jury was impaneled, evidence introduced, and the damages, together with the future rents and profits, were fixed by the verdict. Judgment was then rendered in plaintiff's favor for the recovery of an undivided one-fifth of the premises described in the petition, and also for the damages, rents, and profits assessed by the jury. 30 S. W. 1032. The defendant has appealed, and assigns as error here the action of the trial court to which she objected as above stated.

The principle contended for by appellant is correct. The application is erroneous. It is undoubtedly true that, when a cause is remanded by an appellate tribunal with special directions, the jurisdiction of the lower court is limited to the precise action which it is authorized by the mandate to take. It cannot go beyond its "special power of attorney." Stump v. Hornback, 109 Mo. 272, 18 S. W. 37. We...