Glaser v. Dannelley.
| Decision Date | 24 September 1920 |
| Docket Number | No. 2392.,2392. |
| Citation | 26 N.M. 371,193 P. 76 |
| Parties | GLASERv.DANNELLEY. |
| Court | New Mexico Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
It is the duty of the lower court on remand of a cause to comply with the mandate of the appellate court and to obey the directions therein without variation, even though the mandate may be, or is supposed to be, erroneous; and, where a judgment on appeal is affirmed and the cause is remanded to the trial court, with directions to enter judgment on the supersedeas bond, it is the duty of the court to comply therewith.
Additional Syllabus by Editorial Staff.
Where the mandate of the appellate court directed the trial court to enter judgment for a specified amount for plaintiff, in accordance with admissions that judgment had been rendered for such amount in appellant's brief, and the trial court refused a motion to amend the judgment entered so as to show such amount, before the judgment had been redocketed in the trial court, such motion might be subsequently made and granted, as against a contention that the first action was final.
Appeal from District Court, Curry County; Brice, Judge.
Action by B. G. Glaser against W. U. Dannelley. Judgment for plaintiff, and defendant appeals. Affirmed.
It is the duty of the lower court on remand of a cause to comply with the mandate of the appellate court and to obey the directions therein without variation, even though the mandate may be, or is supposed to be, erroneous; and where a judgment on appeal is affirmed and the cause is remanded to the trial court with directions to enter judgment on the supersedeas bond, it is the duty of the court to comply therewith.
Patton & Hatch, of Clovis, for appellant.
Rowells & Reese, of Clovis, for appellee.
Prior to October 6, 1916, appellee sued appellant in the district court of Curry county, in equity, to set aside a contract entered into between the parties for the purchase of certain real estate, and seeking the return of certain moneys paid by appellee to appellant under such contract, and for damages. The basis of the action was that appellee had been induced to enter into the contract by fraud. The court heard the evidence, and filed a written opinion in the case, in which it was stated that appellee was entitled to a cancellation of the contract and to judgment for $500, the amount of money paid by him thereunder, and the costs of the action, but was not entitled to recover damages, and counsel were directed to prepare a judgment accordingly. On the 6th day of October, 1916, a judgment was entered in accordance with the opinion rendered by the court in all things, except by inadvertence the amount of money, to wit, $500, was not stated, the judgment simply reciting that plaintiff in the cause was entitled to a return of the money paid. Appellant appealed to this court and in his brief set forth a statement of the facts, in which he stated that judgment had been rendered against him in the district court of said county for $500. The court considered the case, and decided in favor of the appellee, the opinion being found in 23 N. M. 593, 170 Pac. 63. In the written opinion we stated that judgment had been rendered in the district court against the appellant for $500, and this statement was taken from appellant's brief. The judgment of the trial court was affirmed, and the mandate was issued, which provided:
There had been a supersedeas bond given in the case. The mandate was filed in the office of the clerk of the district court on the 19th day of March, 1918. On the 29th day of April thereafter, counsel for appellee filed a motion in the district court, in which the court was asked to amend the judgment originally entered, so as to specify the sum of $500 as the money to be refunded to the plaintiff in that court. The motion was accompanied by draft of the amended judgment, but the court was not asked to reinstate the cause on the docket in order to...
To continue reading
Request your trial
-
Anderson v. City of Tucumcari, 5678
...226, could do but a single thing, namely, set aside its former judgment and render one in its stead for defendant. See Glaser v. Dannelley, 26 N.M. 371, 193 P. 76; Albuquerque Broadcasting Co. v. Bureau of Revenue, 54 N.M. 133, 215 P.2d 819; and 3 A.J. 729, Sec. 1233 under 'Appeal and Error......