Kinney v. White

• Decision Date: 28 October 1926
• Docket Number: 492,6 Div. 330
• Citation: 110 So. 394,215 Ala. 247
• Parties: KINNEY v. WHITE et al. WHITE et al. v. KINNEY.
• Court: Alabama Supreme Court

110 So. 394

215 Ala. 247

KINNEY v. WHITE et al.

WHITE et al. v. KINNEY.

6 Div. 330, 492

Supreme Court of Alabama

October 28, 1926

Rehearing Denied in 6 Div. 330. Nov. 11, 1926

Appeal from Circuit Court, Cullman County; O. Kyle, Judge.

Bill in equity by E.C. Kinney against L.C. White and others. From the decrees rendered, the parties separately appeal. Affirmed as to first decree, dismissed as to second.

Appeal from decree rendered subsequent to decree appealed from by plaintiff, is not a cross-appeal.

Trial court cannot render any decree in cause pending on appeal.

Brown &amp Bland, of Cullman, for appellant in case 330 and appellee in case 492.

W.E James, of Cullman, for appellees in case 330, and appellants in case 492.

GARDNER J.

The two appeals were jointly submitted.

Case No. 330.

From a final decree rendered in the cause of E.C. Kinney v. L.C White et al., on pleadings and proof, as duly noted, the respondents prosecuted an appeal to this court, found reported as White et al. v. Kinney, 211 Ala. 624 101 So. 426.

The consideration of the cause in this court disposed of the same upon its merits, the result of which was an affirmance of the holding of the trial court in respect to the validity of complainant's mortgage, but a reversal of the ruling in so far as complainant's mortgage lien was held superior to the lien of respondent A.P. White for rent and advances. The judgment here rendered was one of reversal, and the cause was remanded, "that the trial court may proceed with the cause and render a decree according to the opinion of this court." As is noted by a reference to the report of the case on former appeal, the opinion gave detailed directions as to the decree which, in the opinion of this court, should have been rendered. Upon remandment of the cause and upon a reconsideration of the matter, the trial court was of the opinion the reversal was one with directions, and that there was no occasion for another note of testimony, and proceeded with the rendition of the final decree.

The appeal here (case No. 330) by complainant is rested upon the insistence that such note of testimony was essential upon a resubmission of the cause upon remandment thereof, and that respondents were in default in this respect.

We are unable to agree with this contention. The reversal was not one with mere general directions for a new trial, referred to by some of the authorities as an "unqualified reversal" (2 R.C.L. p. 290), but one with specific directions.

"Where *** the cause is remanded with directions as to the judgment to be entered, such judgment should be entered without a new trial." 13 Ency.Plead. & Pract. p. 854. "Where a particular judgment is directed by the appellate court, the lower court is not acting of its own motion, but in obedience to the order of its superior. *** Public interests require that an end shall be put to litigation, and when a given cause has received the consideration of a reviewing court, has had its merits determined, and has been remanded with specific directions, the court to which such mandate is directed has no power to do anything but obey, otherwise, litigation would never be ended." 2 R.C.L. p. 289.

Our cases are in accord with this generally accepted rule. Johnson v. Glascock, 2 Ala. 519; Lyon v. Foscue,

60 Ala. 468; Keenan v. Strange, 12 Ala. 290.

In Cox v. Brown, 198 Ala. 638, 73 So. 964, consideration was given to the action of the lower court in granting a rehearing and proceeding to a final decree without a resubmission of the cause. It was conceded that, upon granting such rehearing, the case stood as if no decree had ever been rendered. Discussing, however, the question here pertinent by way of analogy, the court said:

"But this does not mean that the original submission is ipso facto set aside. That would result alone from the order of the chancellor, and, if no new or additional evidence is to be introduced and no material amendment is to be made, there could be no occasion for a resubmission of the cause. The question of allowing additional evidence to be offered is left to the sound discretion of the chancellor. *** If it is allowed, there must be notice to the opposite party and a resubmission of the cause, as a matter of course. If not, the chancellor may proceed forthwith, under the pending submission, to the rendition of a final decree such as should have been rendered in the first instance."

See, also, Darling v. Hanlon, 197 Ala. 455, 73 So. 20.

In the instant case, there was no occasion for either amendment of pleading or additional evidence and no effort to this end. The reversal was with directions. The pending submission sufficed for all purposes of the rendition of a final decree, pursuant to the explicit directions contained in the opinion.

In the case of Reese v. Barker, 85 Ala. 474. 5 So. 305, cited by appellant, the first submission was set aside as prematurely entered, for the reason the cause was not at issue as to a material defendant. There was therefore a necessity for a resubmission of the cause, and, it seems, additional proof offered. A note of testimony was held essential. The case is therefore readily distinguishable. Other authorities relied upon by appellant have been considered, among them Alabama City, G. & A.R. Co. v. Bates, 155 Ala. 347, 46 So. 776; Marsh v. Elba Banking Co., 205 Ala. 425, 88 So. 423, McGeevor v. Terre Haute Brew Co., 201 Ala. 290, 78 So. 66, Tatum v. Yahn, 130 Ala. 573, 29 So. 201, and Beck v. Burchfield, 205 Ala. 486, 88 So. 417, but we find nothing in these cases that militates against the conclusion here reached.

We are therefore in accord with the trial court that no new note of testimony was necessary, and that the original and pending submission was sufficient upon which to rest the decree rendered.

It results that the decree on appeal in case No. 330 must be here affirmed.

On Rehearing.

Upon application for rehearing in this cause, appellant requests a modification of the opinion, in so far as it may be construed as an inhibition of the lower court taxing the costs of the cause as to place the burden of the litigation where he finds the fault to lie, or to apportion the burden where there has been mutual fault. Allen v. Lewis, 74 Ala. 381.

The discussion herein of the reversal or the...