State v. Omaha Nat. Bank

• Court: Nebraska Supreme Court
• Writing for the Court: SULLIVAN
• Citation: State v. Omaha Nat. Bank, 60 Neb. 232, 82 N.W. 850 (Neb. 1900)
• Decision Date: 16 May 1900
• Parties: STATE v. OMAHA NAT. BANK ET AL.

60 Neb. 232

82 N.W. 850

STATE

v.OMAHA NAT. BANK ET AL.

Supreme Court of Nebraska.

May 16, 1900.

Syllabus by the Court.

1. When the reversal of a judgment is grounded on error in the trial occurring anterior to the verdict, the verdict is nullified, and the cause, when remanded, stands for trial de novo.

2. If the district court mistakes or misconstrues the mandate of this court, its obedience may be enforced by mandamus.

Application by the state for writ of mandamus to the district court of Douglas county to vacate a judgment rendered in an action by the state against the Omaha National Bank and another. Granted.

Norval, C. J., dissenting.

The Attorney General, for the State.

John L. Webster, R. S. Hall, and Connell & Ives, for respondent.

SULLIVAN, J.

This is an application for a mandamus directing the district court of Dauglas county to vacate a judgment which the state contends was rendered in disregard of the mandate of this court. There is no dispute about the facts. At a former term we disposed of the case of State v. Omaha Nat. Bank, 60 Neb. ___, 81 N. W. 319, by reversing the judgment of the district court, and remanding the cause for further proceedings. After the mandate went down, and the district court was again possessed of the action, the attorney general withdrew his motion to dismiss the cause. Thereupon the defendants moved for a judgment on the verdict, and their motion was sustained. Was this action of the court warranted by the judgment of reversal? Clearly not. The effect of a reversal depends altogether upon the reasons which brought it about. When a judgment of reversal is grounded on an error occurring after the trial, the proceedings on the hither side of the error are wiped out, and the parties are put back where they were when the first false step was taken. That is the point from which the further proceedings are to start,--the point from which the action is to progress anew. Bank v. Stickle, 58 Neb. ___, 80 N. W. 910;Backus v. Burke, 52 Minn. 109, 53 N. W. 1013;National Inv. Co. v. National Savings, Loan & Building Ass'n, 51 Minn. 198, 53 N. W. 546;Montgomery Co. v. Carey, 1 Ohio St. 463; Nelson v. Hubbard, 13 Ark. 253; Cox v. Pruett, 25 Ind. 90;Ervin v. Collier, 3 Mont. 189;Woolman v. Garringer, 2 Mont. 405;Felton v. Spiro, 47 U. S. App. 402, 24 C. C. A. 321, 78 Fed. 576. The error which induced this court to reverse the judgment against the state lay back of the verdict. One of the judges thought no verdict should have been rendered, but that the action should have been dismissed; another thought that the verdict was the result of an erroneous instruction; while the third member of the court expressed no opinion, and took no part in the decision. It thus appears, construing the mandate in the light of the opinions, that the judgment of the district court was reversed because the verdict was the product of judicial error. In other words, it was clearly determined that the verdict was an unlawful verdict, and for that reason alone the judgment was reversed. A reversal under such circumstances necessarily nullified the action of the jury, and blotted out absolutely and forever all proceedings of the court from the point where the first fatal error was committed. The district court was as powerless to reanimate the verdict as it was to revitalize the judgment. An attempt to do either would be an attempt to exercise a revisory power over the decision of this court. After the attorney general withdrew his motion to dismiss the action, it was the manifest duty of the district court to impanel a jury, and try the cause anew. In rendering judgment on the verdict which had been discredited and condemned, the district court failed to execute the mandate of this court; and it becomes our duty to enforce obedience by mandamus. There is no doubt about the authority of this court to issue the writ in this class of cases. Perkins v. Fourniquet, 14 How. 313, 14 L. Ed. 435;In re Washington & G. R. Co., 140 U. S. 91, 11 Sup. Ct. 673, 35 L. Ed. 339;In re City Nat. Bank of Ft. Worth, 153 U. S. 246, 14 Sup. Ct. 804, 38 L Ed. 705;Mason v. Mining Co., 153 U. S. 361, 14 Sup. Ct. 847, 38 L. Ed. 745;In re Sanford Fork & Tool Co., 160 U. S. 247, 16 Sup. Ct. 291, 40 L. Ed. 414. In Re Sanford Fork & Tool Co., supra, Gray, J., speaking for the court, said: “If the circuit court mistakes or misconstrues the decree of this court, and does not give effect to the mandate, its action may be controlled either upon a new appeal (if involving a sufficient amount) or by a writ of mandamus to execute the mandate of this court.” In this same case it is further remarked: “The opinion delivered by the court at the time of rendering its decree may be consulted to ascertain what was intended by the mandate; and either upon an application for a writ of mandamus or upon a new appeal it is for this court to construe its own mandate, and act accordingly.”

We are asked by the attorney general to instruct the district court as to the principles of law applicable to the facts of the case. I am of opinion that we should comply with this request; that we should indicate now our views on the questions which, through no fault of the litigants, we failed to decide in the error proceeding. My associates, however, think otherwise. They think that, having failed to speak as a court when it was our duty so to do, we should remain silent, regardless of consequences, until opportunity is again presented for an authoritative utterance. It is said by counsel for the bank that a mandamus should not issue, because the mandate contained no specific direction for further proceedings. Such direction was unnecessary. The capital fact to be noted is that this court decided that the verdict was an illegitimate product of the trial, and for that reason only reversed the judgment. In disregarding our decision, and dealing with the verdict as valid and binding on the parties, the lower court violated an implied command, which was as clear, definite, certain, and intelligible as though it had been formally expressed in precise terms. A peremptory writ will issue directing the district court of Douglas county forthwith to vacate the judgment rendered by it in favor of the defendants, the Omaha National Bank and J. H. Millard, and to forthwith award a new trial of the action. Writ allowed.

HOLCOMB, J. (concurring).

In concurring in the opinion by Mr. Justice SULLIVAN, it is, perhaps, due from me to say that I regard the matter in controversy herein as involving a rule of practice in cases remanded to the district courts of the state by this court. The question might have arisen in any case. It has arisen in this one. While my qualifications to take part in the court's deliberations have been questioned because of my alleged connection with or relation to the institution of the case heretofore while occupying the office of governor, I do not regard the objections as of sufficient weight or merit to require an expression of views on the subject from me at this time. My duty to participate in the proceedings taken I regard as imperative in the discharge of obligations imposed, and the right so to do beyond reasonable doubt.

NORVAL, C. J.

I dissent from the judgment just rendered. The state sued the Omaha National Bank and J. H. Millard in the district court of Douglas county to recover the sum of $201,884.05. There was a trial of the cause to a jury, who, in obedience to a peremptory instruction of the court, returned a verdict in favor of the defendants; and the judgment entered thereon, on a petition in error prosecuted by the state, was reversed at the last term of this court, and the cause remanded to the trial court for further proceedings. 60 Neb. ___, 81 N. W. 319. A mandate was issued, which contained no specific directions to the district court, but stated that the judgment below was reversed, and the cause remanded for further proceedings, and commanded that the court, “without delay, proceed in said cause according to law.” This mandate was filed in the court below, and entered of record therein, and subsequently the state withdrew its motion to dismiss without prejudice. Afterwards the defendants moved for judgment in their favor on the verdict of the jury theretofore returned in the case, which motion was sustained, and judgment was accordingly rendered against the state. The attorney general has filed a motion in this court to recall its mandate, and issue a new one in the cause, directing the district court to vacate the second judgment entered on the verdict of the jury, and render a judgment for the state as prayed in its petition, or to grant a new trial of the cause in accordance with the opinion of Judge Sullivan filed at the time the judgment of reversal was entered. The attorney general has since filed an amendment to his said motion praying a peremptory writ of mandamus to the district court of Douglas county and to the Honorable Benjamin S. Baker, one of the judges thereof, and who presided at the time the judgment assailed was rendered: “(1) Commanding the said court and said judge to set aside and hold for naught the judgment heretofore rendered in this cause by said court on the 13th day of March, 1900, and filed for record on the 19th day of March, 1900, and to set aside and hold for naught the order rendered on said 13th day of March, and filed on said 19th day of March, sustaining the motion of defendants for judgment on the verdict rendered at the first trial of this cause; (2) commanding the said court and the said judge to enter judgment in said cause for the state as prayed for in its petition in said cause; or (3) commanding the said court and the said judge to forthwith grant the plaintiff a new trial in said cause according to the principles of law enunciated in the opinion of Hon. John J. Sullivan in this cause; or (4) commanding the said court and the said judge to forthwith grant plaintiff a new trial...