Schnepper v. Whiting
| Decision Date | 05 April 1904 |
| Citation | 99 N.W. 84,18 S.D. 38 |
| Parties | SCHNEPPER v. WHITING, Judge. |
| Court | South Dakota Supreme Court |
Application by Elsie J. Schnepper for mandamus to compel Charles S Whiting, as judge of the Ninth Judicial Circuit, to retry an action. Writ granted.
T. H Null and W. A. Lynch, for plaintiff. A. W. Wilmarth, for defendant.
This is an original application for a writ of mandamus, commanding the defendant, as judge of the circuit court, to vacate a judgment rendered in an action recently reversed and remanded by this court, and to retry the same. While the facts stated in defendant's return to the order to show cause, issued herein, differ in some particulars from the facts alleged in the plaintiff's application, the issues thus raised need not be noticed, as the view we shall take will be predicated upon undisputed matters of record.
The plaintiff intervened in an action pending in the circuit court within and for Beadle county, claiming to be the owner of certain real property in the city of Huron. The defendants in that action claimed title under a certain tax deed. The cause having been tried by the court without a jury, and its decision and judgment rendered in favor of the intervener, the defendants, without moving for a new trial, appealed to this court, where, on rehearing, the judgment of the circuit court was reversed, and the action remanded for further proceedings according to law and the decision of this court. Cornelius v. Ferguson, 16 S.D. ___, 97 N.W. 388. When the remittitur reached the circuit court, it entered judgment in favor of the defendants without notice, and subsequently declined to vacate the same on the sole ground that under the decision and judgment of this court it was without authority to do otherwise than render judgment for the defendants.
It was within the power of this court to have reversed, affirmed, or modified the judgment of the circuit court, to have directed the entry of a particular judgment, or to have ordered a new trial. Rev. Code Civ. Proc. § 464. The question is, which of these things was done? not, what should have been done in view of the issues involved in that particular case? The answer to this inquiry must be found in the language of the judgment rendered by this court. It is the duty of the lower court, when a case is remanded, to comply with the mandate of the appellate court, even though there is error therein. 13 Ency. Pl. & Pr. 845. In this jurisdiction the judgment, a copy of which constitutes the remittitur in cases tried on appeal, is itself the mandate of this court. The material parts of the one under discussion are as follows: "This action coming on to be heard, *** and the court having advised thereon and filed its decision in writing, it is considered, ordered, and adjudged that the judgment of the circuit court within and for Beadle county, appealed from herein, be and the same is hereby reversed, and it is further ordered that this action be and it is hereby remanded to said circuit court for further proceedings according to law and the decision of this court." The decision referred to in this judgment became the law of the case in all subsequent proceedings in this and the court below, and the mandate of this court must be construed with reference thereto. 13 Ency. Pl. & Pr. 847. A careful examination of the decision will disclose that only one proposition was determined, namely that the tax deed relied on by the defendants was not void on its face. It is silent as to what other issues, if any, were raised by the pleadings; as to whether the pleadings should be amended; and it contains no suggestion as to what action should be taken by the court below. The words, "and the case is remanded for further proceedings consistent herewith," merely give formal expression to what necessarily follows as a matter of law in all cases heard on appeal, whether the judgment be reversed, modified, or affirmed. Hence the only question to be...
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