Wilson v. Caughlin

• Decision Date: 27 February 1920
• Citation: 187 Ky. 221,218 S.W. 1010
• Parties: WILSON v. CAUGHLIN.
• Court: Kentucky Court of Appeals

218 S.W. 1010

187 Ky. 221

WILSON v. CAUGHLIN.

Court of Appeals of Kentucky.

February 27, 1920

Appeal from Circuit Court, Carlisle County.

Action by T. J. Wilson against W. V. Caughlin. Judgment for defendant, and plaintiff appeals. Affirmed.

John E Kane, of Bardwell, for appellant.

Jesse F. Nichols, of Bardwell, and W. J. Webb, of Mayfield, for appellee.

QUIN J.

The facts leading up to this suit will be found in the first opinion in 167 Ky. 35, 180 S.W. 40.

Appellant (plaintiff below) is seeking the recovery of a tract of 66 1/2 acres, on an island in the Mississippi river, judgment in appellant's favor as to a tract of 200 acres having been affirmed in the former opinion. On the first trial the judgment favored the appellant, but upon appeal the judgment was reversed and on the second trial the defendant was successful.

The first ground for reversal is the failure of appellee (appellant in the former case) to file the mandate of this court.

It is provided by section 761 of the Civil Code that where the judgment is reversed the mandate should be filed in the clerk's office of the lower court. The failure so to do was error, but in the instant case void of any serious results. No error is available in court proceedings unless prejudicial. This is fundamental, and where, as here, the parties proceeded without objection, and the judgment of this court was followed in the retrial, the error is not such under the circumstances of this case, as can now be taken advantage of upon appeal. Courts are established for the administration of justice. Technicalities are not regarded with the same seriousness as formerly, and seldom will they be allowed to interfere with the justice of a cause.

In Smith v. Commonwealth, 148 Ky. 60, 146 S.W. 4, referring to instructions in a death case, it is said:

"If, in a reasonably intelligible way to a reasonably intelligent mind, the court has given the whole law in a criminal trial, we will not reverse for narrow, technical, or linguistic complaints."

The lower court would have been without authority to proceed further in this case but for the judgment of this court, reversing the judgment and remanding for a new trial. The official mode of communicating the judgment of this court to the lower court is through the office of a mandate. The reversal is evidenced by the production and filing of the mandate, and if an objection is made the court cannot enter upon a retrial until the mandate is filed. In the present case the parties proceeded without objection, trial was had, judgment entered, motion for new trial made and overruled, and now for the first time it is urged that the proceedings were erroneous. The complaint comes too late; reversal on the first appeal carried with it instructions for a new trial, and the records of this court show that a mandate was issued; it should have been filed, but, having entered into a second trial without it, the parties will be held to have waived the filing of the mandate. See Foster et al. v. Jordan, 54 Miss. 509; Horton v. State, 63 Neb. 34, 88 N.W. 146; Courtney v. Minneapolis, St. P., S. St. M. Ry. Co., 100 Minn. 434, 111 N.W. 399; Gerard v. Gateau, 15 Ill.App. 520; Brooks v. Brooks, 16 S.C. 621; 4 C.J. 1208, 1210.

It is urged that instruction 1, given by the court, was erroneous in that in defining the character of possession it omitted the word "peaceable." It is true, as said in Le Moyne v. Neal, 158 Ky. 316, 164 S.W. 964, that it is preferable to use the stereotyped expression, "actual, open, notorious, continuous, adverse, and peaceable possession," but the failure to include the word "peaceable" is not fatal to the instruction.

Instructions similar to that given by the court, and now complained of have been repeatedly sustained by this court. See Ky Coal & Timber Development Co. v....