De Lair v. De Lair

• Decision Date: 16 May 1947
• Docket Number: 32178.
• Citation: 27 N.W.2d 540,148 Neb. 393
• Parties: DE LAIR v. DE LAIR (DAVIES Intervener).
• Court: Nebraska Supreme Court

27 N.W.2d 540

148 Neb. 393

DE LAIR v. DE LAIR (DAVIES Intervener).

No. 32178.

Supreme Court of Nebraska

May 16, 1947

Syllabus by the Court.

1. When a case is sent back by the Supreme Court to the trial court with specific directions, the trial court has no alternative except to follow the directions given in the manner set forth therein.

2. When, in an equity case, this court upon appeal directs the district court to enter a different judgment than the one appealed from, the defeated party may, within three days from the rendition of the judgment in the district court and within the term, file a motion for a new trial, under section 25-1142, R.S.1943.

3. Matters expressly, or by distinct and necessary implication adjudicated at a former hearing will not be considered again in the same case.

Lee Kelligar, of Auburn, and J. L. Gagnon, of Falls City, for appellant.

John C. Mullen, Gerald M. Mullen and Jean M. Johnson, all of Omaha, for appellees.

Heard before SIMMONS, C. J., and PAINE, CARTER, MESSMORE, YEAGER CHAPPELL, and WENKE, JJ.

WENKE Justice.

This is the same case as DeLair v. DeLair, 146 Neb. 771, 21 N.W.2d 498 502.

Therein we ordered: 'The action of the lower court is therefore reversed with directions to order the sheriff's return to be amended to show that service was had on Charles DeLair in person.'

Upon the return of the case to the trial court the appellee here Kathryn DeLair, moved for a judgment on the mandate. On the same day the appellant here, Lewis W. Davies, filed his motion asking that he be permitted to show cause why the return on the summons should not be amended.

The court overruled the appellant's motion and entered a judgment in accordance with our opinion and the mandate. Appellant filed his motion for new trial, which was overruled. Thereupon appeal was taken to this court.

As to the procedure upon return of the case to the district court, we held in Regouby v. Dawson County Irrigation Co., 128 Neb. 531, 259 N.W. 365, 366: 'It is a well-known rule of law that, when a case is sent back by the supreme court to the trial court with specific directions, the trial court has no alternative except to follow the directions given in the manner set forth therein. Story v. Robertson, 5 Neb., Unof., 404, 98 N.W. 825; State v. Sheldon, 26 Neb. 151, 42 N.W. 335; Oliver v. Lansing, 51 Neb. 818, 71 N.W. 735; Farmers' & Merchants' Bank [of Holstein] v. German Nat. Bank, 59 Neb. 229, 80 N.W. 820; State v. Dickinson, 63 Neb. 869, 89 N.W. 431; State v. Thompson, 69 Neb. 157, 95 N.W. 47; Gadsden v. Thrush, 72 Neb. 1, 99 N.W. 835; Gund v. Ballard, 80 Neb. 385, 114 N.W. 420; State v. Farrington, 86 Neb. 653, 126 N.W. 91; Kerr v. McCreary, 86 Neb. 786, 126 N.W. 299; Jobst v. Hayden Bros., 88 Neb. 469, 129 N.W. 992; Bliss v. Live Stock Nat. Bank, 124 Neb. 880, 248 N.W. 645; 9 Bancroft, Code Practice and Remedies, 9787, § 7440, and notes.'

We find the court's ruling on the appellant's motion correct.

In Ward v. Geary, 115 Neb. 58, 211 N.W. 208, 210, we held: '* * * when, in an equity case, this court upon appeal directs the district court to enter a different judgment than the one appealed from, the defeated party may, within three days from the rendition of the judgment in the district court and within the term, file a motion for a new trial, under section 8825, Comp.St.1922 (now section 25-1142, R.S.1943).'

Appellant raises several questions that were determined by this court on the first appeal. As stated in Kuhns v. Live Stock Nat Bank, 138 Neb. 797, 295 N.W. 818: "Matters expressly, or by distinct and necessary implication, adjudicated at a former hearing, will not be considered again in the same case.' Edney v. Baum, 70 Neb. 159, 97 N.W. 252.' See, also, Callahan v. Prewitt on...