State v. Superior Court for Cowlitz County

• Citation: 128 P. 648,71 Wash. 354
• Court: United States State Supreme Court of Washington
• Decision Date: 18 December 1912
• Parties: STATE ex rel. SMITH et al. v. SUPERIOR COURT FOR COWLITZ COUNTY.

128 P. 648

71 Wash. 354

STATE ex rel. SMITH et al. v. SUPERIOR COURT FOR COWLITZ COUNTY.

Supreme Court of Washington

December 18, 1912

Application for mandamus by the State, on the relation of Marion Smith and others, against the Superior Court for Cowlitz County. Writ issued.

B. L. Hubbell, of Kelso, for relator.

C. L Baxter, of Seattle, for respondent.

CHADWICK J.

When the case of Northern Pacific Railway Co. v. Smith, 68 Wash. 269, 122 P. 1057, was remanded, application was made to the lower court for a judgment in favor of the appellants in that case, the relators here. The court refused to enter a general judgment, or any judgment other than a judgment for accumulated costs. The material parts of the judgment appealed from follow: 'It is therefore ordered, adjudged and decreed by the court that the defendant Gruber Lumber Company is entitled to twenty-five thousand ($25,000) dollars deposited with the clerk of the court, and the same is thereby awarded to it. It is further ordered that the clerk of this court is instructed to deliver the money so deposited to the defendant Gruber Lumber Company. To which the other defendants except, and their exceptions allowed.' The 'other defendants,' so far as our present inquiry is concerned, were the present relators, the heirs of L. P Smith, deceased. The case was heard and decided by this court upon its merits, and we directed: 'The order appealed from is reversed, and the case is remanded with instructions to enter an order directing the money to be paid to the heirs of L. P. Smith, deceased.' Relators, as parties to the former suit, have applied to this court for a writ of mandamus, commanding the judge of the court below to enter a judgment in their favor.

The answer filed on behalf of the trial judge goes no further than to deny the allegation that this court directed a judgment. But we understand the real position of the respondent to be that, inasmuch as the Gruber Lumber Company has withdrawn the money under the rightful order of the court, prior to the pending of the appeal, and because relators were not parties to the original judgment of condemnation, the court is without jurisdiction to enter a judgment, and that relators, therefore, although the prevailing parties, must bring an independent action to recover the amount found to be due them. 'Upon appeal from a judgment or order * * * the Supreme Court may * * * direct a proper judgment or order to be entered.' Rem. & Bal. Code, § 1737. It would seem that the court below could not do otherwise than enter a judgment as directed by this court. Ordinarily, where a party has claimed the reward of a judgment which is reversed on appeal, a restitution is asked, and it is generally allowed. But it may be that our former opinion will not warrant an order of restitution. At any rate, relators are not asking for it. But it does warrant, if, indeed, it does not command, a judgment. There can be no need or reason for further proceedings. The real issue between relators and the Gruber Lumber Company was the ownership of the fund deposited in court for the claimants in the condemnation proceeding. That has been adjudged, and the judgment affirmed. Our order reversing the lower court was a final judgment. It is only where further proceedings are directed that it is not. 'Where there is a judgment of reversal completely putting an end to the controversy by special directions or instructions, it is, as a general rule, to be regarded as final in the strictest sense of the term.' Elliott, Appellate Procedure, § 585.

The statute last cited is only declaratory of the general powers which are inherent in all courts of last resort. 'Where a cause is reversed and remanded by the appellate court, with directions as to the further proceedings of the trial court 'it is out of the power of the lower court to open the cause and have a new trial.' Chouteau v. Allen, 74 Mo. 56. It must, and can only, proceed to carry into execution the mandate of the superior court. State ex rel. Dixon v. Givan, 75 Mo. 516. Any other rule would break down all authority of and respect for the appellate courts. As said by Sherwood, J., supra: 'This court would...