Gamble v. Gibson

• Decision Date: 10 May 1881
• Citation: 10 Mo.App. 327
• Parties: DAVID C. GAMBLE ET AL., Appellants, v. CHARLES GIBSON, Respondent.
• Court: Missouri Court of Appeals

10 Mo.App. 327

DAVID C. GAMBLE ET AL., Appellants,

v.CHARLES GIBSON, Respondent.

St. Louis Court of Appeals, Missouri.

May 10, 1881.

1. Where a referee's report in an equity proceeding finds the defendant chargeable upon all the items of a claim, and, on appeal, there being no contest upon the facts, the evidence not being preserved, the judgment is affirmed, except as to the conclusion of law upon one item, the Supreme Court holding the defendant not chargeable upon that item, and remanding the cause for further proceedings in accordance with its opinion; the trial court errs in not entering judgment in accordance with such opinion.

2. In such a case it is error for the trial court to again refer the exception upon which the reversal was had.

3. No facts having been controverted upon the appeal, the parties were concluded as to the facts, by the finding of the referee, confirmed by the Circuit Court.

4. The defendant, by contesting the referred exception before the referee, did not waive his exception to the action of the trial court in making the rereference.

5. In interpreting the mandate of an appellate court, where its directions are not clear, the opinion of the court will be looked to for explanation.

APPEAL from the St. Louis Circuit Court, GOTTSCHALK, J.

Reversed and remanded.

MARTIN & LACKLAND, for the appellants.

CHARLES GIBSON, pro se.

THOMPSON, J., delivered the opinion of the court.

At the December term, 1867, of the Probate Court of St. Louis County, Charles Gibson presented his final settlement as executor of the estate of Hamilton R. Gamble, deceased. The devisees and distributees filed twenty-one exceptions to the report, which, by consent, were referred to a referee, upon the incoming of whose report a judgment was rendered, from which the executor appealed to the Circuit Court, where, under the statute, the whole matter was heard de novo before Edward T. Farish, another referee appointed for that purpose. Both parties, the executor and the exceptors, excepted to his report, but it was confirmed by the court, judgment rendered thereupon, and from this judgment both parties appealed to the general term. The general term affirmed the judgment of the special term, and the executor alone appealed to the Supreme Court. He made no contest in the Supreme Court upon the findings of fact of the referee; his bill of exceptions did not contain the evidence upon which the referee's findings were based, but contained only the report, which embraced his findings of fact and conclusions of law as to the exceptions to the executor's final account which were contested before him. The case is reported in 59 Mo. 585. In this state of the record, the Supreme Court had nothing before it but the conclusions of the referee upon the facts found by him. All of these conclusions were confirmed by the Supreme Court, except his conclusion upon the facts found on the seventh exception. This exception sought to charge the executor with a loss which the estate had sustained from the unauthorized act of the executor in the year 1864, in converting certain funds of the estate, which consisted of the national currency, into gold. The referee found, under this exception, in favor of the exceptors, in the sum of $6,613.30, with interest, making an aggregate finding against the executor, under this exception, of $9,386.41. The referee having found, however, that the executor acted in good faith in this matter, and with reasonable discretion, the Supreme Court held that the conclusion of law of the referee, confirmed by the judgment of the Circuit Court, that the executor was chargeable with this loss, and with interest on the same, was erroneous; and for this error alone the judgment was reversed and the cause remanded.

The usual mandate was sent down to the Circuit Court, directing the court to proceed in conformity with the opinion of the Supreme Court. Thereupon the executor moved the court to enter judgment in accordance with the report of the referee, except as to the seventh or gold exception; as to that, the seventh exception, to render judgment for the executor upon the facts found and reported by the referee. This the circuit judge, after having taken the opinion of the judges in general term, declined to do, and upon this ruling the executor took a bill of exceptions. The executor then applied to this court for a mandamus to compel the circuit judge so to enter judgment, which this court refused upon the obvious ground that, though a mandamus will lie to compel an inferior court to proceed in a cause, it cannot be resorted to to instruct the court how to proceed. The State ex rel. v. St. Louis Circuit Court, 1 Mo. App. 543. The exceptors then moved that the whole case be again referred to a referee, to retry the issues of fact and law, which motion the court denied, and the exceptors excepted. The court then, against the objection of the executor, referred the cause to Edward T. Farish, “to retry the matter contained in the seventh exception to his report heretofore filed herein.” Farish declining to act, Nathaniel Holmes was appointed in his place, and a supplementary order was made defining the scope of inquiry before him, which did not materially change the previous order. Under this order, the facts relating to the seventh exception were heard de novo before the referee Holmes, and he rendered a report thereupon, finding “that the executor, in these purchases of gold, acted in good faith, according to his best judgment, for the interest of the estate,” and that his action in this respect “was a prudent and faithful discharge of his duty as executor and trustee, and cannot be considered as unauthorized or imputed as a fault, or failure of duty;” and the referee accordingly found in conformity with the judgment of the Supreme Court, that the executor could not justly be held personally responsible for the loss which the estate had thus sustained. He found, however, that the loss which the estate had thus sustained was $6,094.08, instead of $6,613.30, as claimed by the executor and as found by Farish, the previous referee. With some slight modification, the court now confirmed the report of Holmes, and upon this report and the report of Farish, except so far as the latter report related to the seventh exception, it rendered judgment against the executor for a balance of $967.64, and charged against him the costs of the proceedings had since the reversal of the cause by the Supreme Court.

We have arrived at the conclusion that the Circuit Court committed no error in refusing, upon the reversal of its decree by the Supreme Court, to refer the whole case again to a referee. We have also come to the conclusion that in refusing to enter judgment upon the request of the executor, in conformity with the opinion of the Supreme Court, the Circuit Court committed error, and that it was error again to refer the seventh exception to a referee, upon an order which reopened the facts for contestation. In the view we take, the failure of either party to appeal to the Supreme Court from the judgment confirming the report of Farish, referee, upon a bill of exceptions which brought before that court for review the facts upon which his findings were based, had the effect of conclusively settling those facts as the facts of the case, so that it was not competent for the Circuit Court at a subsequent term to reopen the case as to any of those facts. It is to be remembered that this proceeding is in the nature of a suit in equity. It involves matters of complicated account between an executor and devisees and distributees whose interests are dissimilar. In such proceedings, the well-known practice of courts of chancery has always been to mould their orders. and decrees in such manner as to settle the diverse rights of the respective parties. A final decree in such a proceeding is not an entire thing, which must stand or fall together in all its parts, in the sense in which a judgment at law is an entire thing; but it may embrace in substance the elements of several judgments. It is not necessary that all the plaintiffs recover against all the defendants, or that all the defendants go hence and have judgment against all the plaintiffs; but the chancellor may mould his decree so that some of the plaintiffs shall recover and others shall pay, and some of the defendants shall recover and others shall pay, according to the respective equities of the different parties to the suit. Upon an appeal, the case is re-examined by the appellate tribunal as it should have been examined by the court below; and nothing is better settled in chancery practice than that a reversal by an appellate court of a decree in a chancery case reopens the case only so far as the appellate court directs it to be reopened. All matters not remitted by the appellate court to the court below for re-examination, stand as conclusively adjudicated, and are not re-examinable, either in the court below or in the appellate court on a future appeal. Supervisors v. Kennicott, 94 U. S. 498, and cases cited; Cassedy v. Bigelow, 27 N. J. Eq. 505; McNairy v. Mayor, 2 Baxt. 251; Biscoe v. Tucker, 14 Ark. 515, 523; McClellan v. Crook, 7 Gill, 333; Young v. Frost, 1 Md. 377, 396. The rule is so strong that it prohibits the chancellor from reopening the case for the purpose of correcting obvious errors, which were evidently overlooked by the Supreme Court, or not brought to its attention. McNairy v. Mayor, supra. “No matter how injurious the consequence may be, the parties in the appellate court may be bound by the submission of a cause upon a diminished record, according to which one has affirmed and the other has denied that there is error. The appellate court, with a deep...