Wilborn v. Elston
| Decision Date | 28 January 1946 |
| Docket Number | 4-7816 |
| Citation | 191 S.W.2d 961,209 Ark. 670 |
| Parties | Wilborn v. Elston |
| Court | Arkansas Supreme Court |
Appeal from Woodruff Chancery Court; A. L. Hutchins, Chancellor.
Affirmed.
Jno. S. Gatewood and W. J. Dungan, for appellant.
Ross Mathis, for appellee.
This is the second appeal of this case. The suit was originally brought by appellants, claiming to be the three duly elected trustees of the Church of God in Christ at Cotton Plant, Arkansas, for recovery of possession of the church property. The present appellees, two of whom claim to be lawful trustees of said church, were made party defendants. We do not attempt a restatement of the facts which were set forth in our opinion in the former appeal in Elston v. Wilborn, 208 Ark. 377, 186 S.W.2d 662, 158 A. L. R. 179.
As stated in the former opinion, the issue for trial in the chancery court was whether the present appellants, as plaintiffs below, were the duly elected trustees of the church at the time of the filing of the suit. The Chancellor apparently being unable to determine this question from a consideration of the testimony offered on this point in the first trial, ordered an election for that purpose. On the basis of the result of such election, appellants were declared to be the duly elected trustees and a decree was rendered in their favor.
On the former appeal we held that the issue, whether appellants were the duly elected trustees, should have been determined on the basis of facts as they existed prior to filing of the suit and not by the results of an election ordered by the court. The decree of the trial court based on the results of the election was reversed, and the cause remanded, "for a trial and decree on the question, whether the plaintiffs, at the time they filed the ejectment suit, were the duly elected trustees of the church, and also for the court to determine whether there is any merit to the lien claimed by appellant Bowe in the cross-complaint."
After the opinion of this court was rendered on the former appeal, the present appellants filed a motion and brief for rehearing in which it was strongly urged that a preponderance of the testimony in the original record, aside from any consideration of the election ordered by the court, showed that appellants had been properly elected trustees. It was further argued that the case had been fully developed and that a final decree should be entered. The motion for rehearing was denied and mandate was issued on the original opinion.
When the cause was presented to the trial court for retrial on the opinion and mandate from this court, both parties declined to offer additional testimony. Upon consideration of the mandate, and the record in the former appeal, the trial court dismissed the complaint of appellants for want of equity, and this appeal follows.
We try chancery cases de novo, and the usual practice on appeal is to end the controversy here by final judgment, or by direction to the trial court to enter a final decree. There are, however, exceptions to this practice, and it rests in the discretion of this court to determine whether, upon reversal of a cause, the same should be opened for a new trial. If the cause is heard and determined by the chancellor on an erroneous theory, or if it is not sufficiently developed in the trial court, this court may remand for further hearing on the whole case, or on certain issues. Carmack v. Lovett, 44 Ark. 180; Long v. Chas. T. Abeles & Company, 77 Ark. 156, 93 S.W. 67; Gaither v. Gage, 82 Ark. 51, 100 S.W. 80; Carlile v. Corrigan, 83 Ark. 136, 103 S.W. 620. This practice was followed in the instant case on the former appeal, where the cause was heard by the chancellor on what we determined to be an erroneous theory, and the testimony on what we conceived to be the pertinent issues did not appear to us to have been fully developed.
Appellants now contend, as they did on rehearing in the former appeal that a preponderance of the evidence adduced on the original hearing supports the finding that they were the duly elected trustees of the church at the commencement of the suit. It is insisted that the taking of additional testimony on retrial of this issue, under the mandate and opinion rendered in the former appeal,...
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Ford v. Ford, CA
...practice is to end the controversy by final judgment here or by directions to the trial court to enter a final decree. Wilborn v. Elston, 209 Ark. 670, 191 S.W.2d 961. With the evidence fully developed, this court should decide the case without remanding it to the chancery court. Lewis v. L......
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...it was apparent that the case was tried upon an erroneous theory in the chancery court. We analyzed previous holdings in Wilborn v. Elston, 209 Ark. 670, 191 S.W.2d 961, We try chancery cases de novo, and the usual practice on appeal is to end the controversy here by final judgment, or by d......
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...de novo and to end the controversy by a final judgment or by a direction to the chancellor to enter a final decree. Wilborn v. Elston, 209 Ark. 670, 191 S.W.2d 961 (1946). When, as here, the facts have been fully developed, it would be pointless for us to remand the case to the chancellor f......