Whitney v. Traynor

• Decision Date: 29 April 1890
• Citation: 45 N.W. 530,76 Wis. 628
• Parties: WHITNEY ET AL. v. TRAYNOR ET AL.
• Court: Wisconsin Supreme Court

76 Wis. 628

45 N.W. 530

WHITNEY ET AL.

v.TRAYNOR ET AL.

Supreme Court of Wisconsin.

April 29, 1890.

Appeal from circuit court, Dodge county; A. SCOTT SLOAN, Judge.G. J. Cox, ( I. C. Sloan, of counsel,) for appellants.

Lander & Lander, W. G. Coles, and J. M. Olin, for respondents.

TAYLOR, J.

This is an action to foreclose a mortgage. The case was fully tried in the circuit court, and, after judgment rendered therein in said court, the plaintiffs and present appellants appealed from certain parts of such judgment to this court, and upon such appeal this court reversed certain parts of the judgment appealed from, and remitted the case for further proceedings. See case reported in 74 Wis. 289, 42 N. W. Rep. 267. The record having been remitted to the circuit court, that court, instead of entering judgment in accordance with the opinion of this court, on the application of one of the defendants, granted a new trial upon one of the issues made in the action. To this order the plaintiffs excepted, and appeal from such order to this court. On this appeal, the only question raised is whether the circuit court had authority to order the retrial of the case upon one of the issues raised by the original pleadings, and which issue was tried and determined on the first trial of said action, and as to which issue this court reversed the findings and judgment of the circuit court on the former appeal. It is claimed by the counsel for the respondents on this appeal that, because this court on the former appeal did not direct the circuit court to render a judgment in accordance with the opinion in that case, it left the matter in the discretion of the circuit court to render such judgment, or, in its discretion, upon proper showing, to grant a new trial of the whole or a part of the issues in said action. On the part of the learned counsel for the appellants, it is contended that, upon the affirmance or reversal of a judgment by this court upon an appeal in an equity case, the circuit court, upon a remittitur from this court, must enter judgment according to the opinion of this court as to the rights of the respective parties as found by this court, unless this court in its remittitur directs or leaves it to the discretion of the circuit court to grant a new trial as to some or all the issuesin the case. We think the rule contended for by the learned counsel for the appellants in this case is the true rule, and has been fully sanctioned and affirmed by the repeated decisions of this court. That this ought to be so is in accord with the theory of the duty of this court upon an appeal in an equitable action. On such appeal, this court not only corrects any errors which may have been committed by the trial court, but it retries the case upon the merits, and so indicates in its decision the judgment which should be entered therein by the court below. If anything has happened in the trial by the improper exclusion of...