Hurck v. Erskine

• Decision Date: 31 March 1872
• Citation: 50 Mo. 116
• Parties: PETER J. HURCK v. GREENE ERSKINE, Appellant, AND WILLIAM M. PRICE, Respondent.
• Court: Missouri Supreme Court

50 Mo. 116

PETER J. HURCK

v.GREENE ERSKINE, Appellant, AND WILLIAM M. PRICE, Respondent.

Supreme Court of Missouri.

March Term, 1872.

Appeal from St. Louis Circuit Court.

T. T. Gantt, for appellant.

John Wickham, for respondent.

If this court, when it heard this cause on the first appeal, had considered the case in a proper condition to justify it in rendering such judgment as the court below should have rendered, and that the law and ends of justice would be carried out thereby, it would doubtless have given judgment itself, and either have awarded execution or remitted the record to the Circuit Court with an order to execute such judgment, as was done by said court at the same term in the cases of Gillam v. Kerone, 45 Mo. 492, and in The State of Missouri v. The Bank of Missouri, 45 Mo. 543; but nothing of the kind was done. It only reversed the decision of the Circuit Court and remanded the cause.

The language of the mandate is “that the judgment of the Circuit Court is reversed and annulled, and for naught held and esteemed, and the cause is remanded to the Circuit Court for further proceedings to be had therein, in conformity to the opinion of the Supreme Court.”

Under this state of things the Circuit Court could not proceed to give judgment without a hearing, nor is there any law to preclude either party from offering such evidence upon the new hearing as may be competent and admissible. (State ex rel. Allen v. St. Louis Circuit Court, 41 Mo. 580-581.)

This question has been before this court at the present term in the case of The State of Missouri v. Cornelius Newkirk, brought up on a writ of error to the St. Louis Court of Criminal Correction, in a different form, it is true, but the principle decided is the same. In that case the court held that where a “judgment is reversed and the cause remanded,” that language implies all that the statute requires; and when the case goes back it must be proceeded in in accordance with the rulings of this court as expressed in its opinion. It does not follow that when a new trial is awarded, whether by the Supreme or inferior court, the parties are prohibited from introducing other evidence than what appeared in the first trial. Whether in a criminal or civil case, the parties are always permitted to introduce new evidence, whether the reversal was on a question of fact or law, or both. (See State v. Newkirk, 49 Mo. 472.)

Harding & Crane, for respondent.

The mandate of this court remanded the case, to be tried anew, and left all parties in the same position as if no trial had been had, excepting as to points decided by this court. (State ex rel. Allen v. Judges St. Louis Circuit Court, 41 Mo. 574.)ADAMS, Judge, delivered the opinion of the court.

Peter J. Hurck was trustee in a deed of trust to secure three several promissory notes, of one of which Greene Erskine claimed to be the owner, as having purchased the same from Wm. M. Price, the original holder of all the notes, and the present holder of the two notes not claimed by Greene Erskine.

The trustee sold the property. Erskine claimed, as his note was first named and first due by the terms of the trust, that he was entitled to be first paid; and Price claimed that Erskine did not buy the note at all, and was not the owner, but that the note he held had been paid off, and that he was not entitled to any of the trust funds in the hands of Hurck. Thereupon, Hurck filed a petition of interpleader, to compel Price and Erskine to interplead, which they did, and the issues on these interpleas were submitted to the court to try; and upon such trial the court found “that the said Greene Erskine did become the purchaser from Wm....