The opinion of February 19, 1936, reversed the decree below for appropriate proceedings in conformity with the opinion of this Court heretofore filed. This rehearing is on the proposition whether the record before the Court justifies or requires an affirmance of the decree without reconsideration of the controversy by the Chancellor.
An examination of the record here shows that the reversed final decree in this case was predicated, at least in part, on the transcript of the record in Bear v. Duval Lumber Co., 112 Fla. 340, 150 Sou. Rep. 614. It is reasonably to be inferred from the argument of appellee made before this court in support of affirmance of that decree, that the Chancellor was largely influenced in rendering the decree appealed from by the belief on his part that this Court's decision in the first cited case was practically conclusive of the whole controversy adverse to the position argued by appellant, and that therefore the case now before the Court has never been tried in accordance with the applicable principles of law laid on in this Court's opinion of February 19, 1936.
Undoubtedly we have the power to completely rehear the merits of an equity case brought here on appeal from a final decree. And upon such rehearing we are unquestionably authorized to enter our own decree predicated on what may be the Supreme Court's conception of the controverted issues of fact, as well as of law in the case. And this we may do irrespective of any conclusions thereon that have been reached and declared by the Chancellor whose decision is before us on appeal. Hollingsworth v. Arcadia Citrus Growers, 122 Fla. 90, 165 Sou. Rep. 369, and cases cited.
However, when it is made to appear that an equity cause has not been tried and decided by the Chancellor according *Page 23 to the applicable principles of law that the Supreme Court has found should have guided the Chancellor's consideration of the pleadings and evidence, the modern practice is to reverse and remand the cause for a rehearing and redecision before the Chancellor in the light of the appellate court's opinion, because of the opportunity thus given to make amendments and to supplement the record, where necessary, to make clearer the salient facts of the real controversy. New York Life Ins. Co. v. Oates, 122 Fla. 540, 166 Sou. Rep. 269, and cases cited.
After hearing the arguments and protestations of the parties on rehearing, we are constrained to adhere to the practice last stated and thereupon to permit the opinion and judgment of this Court entered on February 19, 1936, to stand, and mandate to issue pursuant thereto, without attempting at this time to further rehear or to now finally determine in this Court, the salient issues involved and required to be decided.
None of the previous opinions and judgments of this Court have conclusively settled the particular equitable claim of appellants Sullivan and Bear to the relief of exoneration sought in the present litigation. Therefore the present litigation should be reheard and redecided by the Chancellor in the light of the applicable principles of law that pertain to it, before this Court attempts to finally dispose of the case.
Opinion and judgment of appellate court entered February 19th, 1936, reinstated and made the judgment of the Court on rehearing.
WHITFIELD, C.J., and ELLIS and BUFORD, J.J., concur.
TERRELL and BROWN, J.J., dissent. *Page 24