Preece v. Woolford
| Decision Date | 26 October 1923 |
| Citation | 255 S.W. 285,200 Ky. 604 |
| Parties | PREECE ET AL. v. WOOLFORD. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Pike County.
Action by Wheeler Preece and others against E. S. Woolford and J. M Woolford. The action was abated as to the last-named defendant. Judgment for the remaining defendant, and plaintiffs appeal. Affirmed.
Stratton & Stephenson, of Pikeville, for appellants.
Roscoe Vanover, of Pikeville, for appellee.
The first judgment rendered in this equity action was reversed on appeal to this court in an opinion reported in 196 Ky. 710 246 S.W. 27, wherein the nature of the case and its facts with the judgment of the court thereon, are fully stated, and will not be referred to on this hearing except to the extent that may be necessary for an understanding of this opinion.
Appellants are adult heirs of H. J. Preece, deceased, and jointly inherited from him, together with their two infant coheirs 350 acres of land in Pike county. The guardian for the infants, with the adult appellants, entered into a written agreement with J. M. Woolford and appellee here, E. S. Woolford, to sell to them the inherited tract of land on terms and conditions therein stated. This action was filed by the Preece heirs to cancel the contract upon certain grounds stated in the petition, which grounds the joint answer of appellee and his cocontractor, J. M. Woolford, controverted, and by counterclaim sought specific performance of the contract. The court dismissed the petition, seeking a cancellation of the contract except as to the two infant plaintiffs, and decreed its specific performance as against the adult plaintiffs according to the prayer of the counterclaim contained in the answer. Plaintiffs appealed from that judgment, and this court reversed it solely upon the ground that under the condition of the pleadings the burden was on the defendants seeking specific performance to prove their ability to perform the contract by paying the agreed consideration, and that no proof was introduced by them to sustain that burden, but the opinion recognized their right to the relief had that proof been made. It contains this language:
The mandate thereafter issued from this court, and subsequently filed in the court below, said:
"It is therefore considered that said judgment be reversed, and cause remanded, for proceedings consistent with the opinion herein."
After it was duly filed in the circuit court, plaintiffs amended their pleadings, and alleged that since the first trial the defendant, J. M. Woolford, had sold his interest in the contract to them, and asked for an abatement of the cause of action set up in the counterclaim to the extent of his interest. Following that, E. S. Woolford gave his deposition, wherein he conclusively proved his financial ability to perform the contract and to comply with all its obligations, and tendered and deposited with the commissioner of the court the amount due under it for his proportionate part of the consideration therein. The court on the record as thus amended decreed that he was entitled to a conveyance by the adult plaintiffs of an undivided one-half of their respective interests of the entire tract, and from that judgment they prosecute this appeal, and complain of it upon the sole ground that the trial court was without authority to permit additional proof, or to consider appellants' deposition, which contention sharply presents for our determination the proper rule of practice under the particular facts and circumstances.
It is undoubtedly true, and so recognized by all courts and text-writers, that in equity actions a reviewing or appellate court has the inherent power, upon a reversal of the judgment rendered by the trial court, to direct it what character of judgment to enter upon a return of the case, and that direction is usually contained in the mandate issued from the appellate court, rather than in the opinion rendered, since the purpose of the mandate is to notify the trial court of the determination of the cause on appeal, and, if necessary to effectuate the adjudications of the opinion, to direct the procedure upon a return of the case (4 Corpus Juris, 1208, 1210; Miller's Appellate Practice [Ky.] p. 203; Elliott on Appellate Procedure, § 576, p. 489); and such direction is most usually given upon such reversal, especially so if the case is prepared below and submitted upon the prepared record for final judgment. But we know of no mandatory rule of practice imperatively requiring such directions to be given. It is also a recognized and followed rule of appellate practice to direct in the reversing opinion further preparation upon a return of the case "where the justice of the case seems to demand that a party be afforded an opportunity of adducing further proof" (Corpus Juris, supra, 1200), and this court has recognized that rule in a number of cases, some of which are Pond Creek Coal Co. v. Day, 187 Ky. 820, 220 S.W. 1053; Botts v. Botts, 108 Ky. 414, 56 S.W. 677, 961, 22 Ky. Law. Rep. 109, 212; Young v. Cumberland County E. Society, 183 Ky. 625, 210 S.W. 494, 6 A. L. R. 135; O'Bryan v. O'Bryan, 183 Ky. 766, 211 S.W. 753.
But we have here neither of the classes of cases to which we have referred, since the opinion on the former appeal of this case did not direct the trial court the character of judgment to be rendered on a return of the case, nor did it direct the taking of additional proof or any other preparatory action. It neither ordered a final disposition of the cause nor directed further preparation, so that the exact question is What is the correct practice when the opinion merely reverses the judgment without any...
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Noel's Adm'x v. Black's Adm'r
... ... decide and terminate a case by directing a specific judgment ... upon a reversal of the chancellor's decree. Preece v ... Woolford, 200 Ky. 604, 255 S.W. 285. When the court ... exercises that power, it is conclusive and final, binding ... alike on the trial ... ...
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Pieck v. Carran
...mandate, and certainly with the opinion, for the chancellor to place it on the docket to have the same standing as if no trial had. In the Preece case were only dealing with the introduction of evidence by way of deposition, already in the record upon the first trial, and we limited the reo......
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Noel's Administratrix v. Black's Administrator
...equity suits to decide and terminate a case by directing a specific judgment upon a reversal of the chancellor's decree. Preece v. Woolford, 200 Ky. 604, 255 S.W. 285. When the court exercises that power, it is conclusive and final, binding alike on the trial court and itself. In this case ......
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Pieck v. Carran
...the court what order should be entered on remand, but it is certain that we did not direct a new trial. In the case of Preece v. Woolford, 200 Ky. 604, 255 S.W. 285, 287, quoting from 4 C. J. 1220, it might appear that in this case the court had wide discretion in redocketing the case, to h......