State v. Omaha National Bank
| Decision Date | 16 May 1900 |
| Docket Number | 10,586 |
| Parties | STATE OF NEBRASKA v. OMAHA NATIONAL BANK ET AL |
| Court | Nebraska Supreme Court |
ERROR to the district court for Douglas county. Tried below before BAKER, J. Original application for mandamus to compel the district court to obey the mandate of this court heretofore issued herein. Writ allowed. NORVAL, C. J. dissenting.
WRIT ALLOWED.
Constantine J. Smyth, Attorney General, and Willis D. Oldham, Deputy, for the state.
Constantine J. Smyth: After the reversal of an erroneous judgment the parties in the court below have the same right which they originally had. Phelan v. San Francisco, 9 Cal. 15. The reversal of a judgment generally for a specified error alleged to be the only error is the reversal of the whole judgment, and not only of the part held to be erroneous. Davis v. Headley, 22 N.J.Eq. 115. Where a cause is remanded without special directions and the court below is merely directed to proceed in conformity with the opinion expressed by the appellate court, such cause stands for trial upon the merits, the same as if no appeal had been taken. Updike v. Parker, 11 Ill.App. 356.
When a cause is "reversed and remanded for further proceedings," the judgment of the court below, as to the parties to the record, is entirely abrogated, and the cause then stands in the court below precisely as if no trial had occurred. Chickering v. Failes, 29 Ill. 303; Palmer v. Wood, 35 N. E. [Ill.], 1122; Schumann v. Helberg, 62 Ill.App. 218. Where a decree of a probate court on final settlement of an administrator's account is reversed generally and remanded, the decree is vacated in toto and the parties stand in the same position as if it had never been rendered. Jones v. Dyer, 20 Ala. 373. Counsel for the defense insists that the only remedy is by appeal. If that be true, then the litigant might never be able to reap the reward of a successful litigation in this court. A trial court might continue to disobey your honors' mandates, and enter such judgments as it saw fit if the contention of counsel be correct. But it is not. A litigant has a right to have your honors' commands in his favor obeyed promptly. If this were not true, the position of this, the highest court in the state, would be a pitiable one. It would have the power to issue orders but no power to enforce them. That, however, is not your position. You are not required to sit supinely by, while your commands are flouted by either counsel or lower court. You have the power to enforce those commands, and to compel obedience to your judgment in a summary manner. Sibbald v. United States, 12 Pet. [U.S.], 491; In re Washington & G R. Co. 140 U.S. 91; United States v. Fossatt, 21 How. [U.S.], 445.
R. S Hall, Connell & Ives and John L. Webster, contra:
The district court was at liberty to consider and decide any matter left open by the mandate, and certainly the question of whether or no there should be a trial de novo of all the questions of law and fact in this case was left open by the mandate. In re Sanford Fork & Tool Co. 160 U.S. 247; Woolman v. Garringer, 2 Mont. 405; Ervin v Collier, 3 Mont. 189; Commissioners for Montgomery County v. Carey, 1 Ohio St. 463; Cox v. Pruitt, 25 Ind. 90.
Mandamus will not lie to review the action of a court, which is judicial and discretionary in its nature. But the remedy, if an error has been committed, is by appeal. People v. Pratt, 28 Cal. 166; State v. Kinkaid, 23 Neb. 641.
OPINION
This is an application for a mandamus directing the district court of Douglas 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, 59 Neb. 483, 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. Backus v. Burke, 52 Minn. 109, 53 N.W. 1013; National Investment Co. v. National Savings, Loan & Building Ass'n, 51 Minn. 198, 53 N.W. 546; Commissioners of Montgomery County v. Carey, 1 Ohio St. 463; Nelson v. Hubbard, 13 Ark. 253; Cox v. Pruitt, 25 Ind. 90; Ervin v. Collier, 3 Mont. 189; Woolman v. Garringer, 2 Mont. 405; Felton v. Spiro, 47 U.S. App. 402.
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. It 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 decisions of this court. After the attorney general withdrew his motion to dismiss the action it was the manifest duty of the district court to empanel 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, 35 L.Ed. 339, 11 S.Ct. 673; In re City Nat. Bank of Fort Worth, 153 U.S. 246, 14 S.Ct. 804, 38 L. Ed. 705; Mason v. Pewabic Mining Co. 153 U.S. 361, 38 L.Ed. 745, 14 S.Ct. 847; In re Sanford Fork & Tool Co. 160 U.S. 247, 40 L.Ed. 414, 16 S.Ct. 291. In the last case cited, Gray, J. speaking for the court, said, p. 225: "If the circuit court mistakes or misconstrues the decree of this court, and does not give full 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 the same case it is further remarked, p. 256: "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 the 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 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.
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 objection as of sufficient weight or merit to require an expression of views on the subject from me at...
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