Citing: Kennedy v. Dickie, 34 Mont. 205; Stevens v.Trafton, 36 Mont. 520, 93 P. 810; Barnard Realty Co. v.City of Butte, 55 Mont. 384, 177 P. 402; Bosanatz v.Ostronich, 57 Mont. 197, 187 P. 1009; State ex rel. B. M.Mining Co. v. District Court, 32 Mont. 20, 79 P. 410;State v. District Court, 46 Mont. 384, 128 P. 583; Soule v. Dawes, 14 Cal. 248; Butler v. Thompson, 52 W. Va. 311,43 S.E. 174; Wadhams v. Gay, *Page 596 83 Ill. 250; People v. Waite, 243 Ill. 156, 90 N.E. 183; ReSanford Fork Tool Co., 160 U.S. 247, 40 L. Ed. 414, 16 Sup. Ct. Rep. 291 [see, also, Rose's U.S. Notes]; Ervin v. Collier,3 Mont. 189; American Hydraulic Placer Co. v. Rich,8 Idaho, 570, 69 P. 280; State v. Superior Court of Spokane County,7 Wash. 234, 34 P. 930; National Investment Co. v. NationalSavings Loan Bldg. Assn., 51 Minn. 198, 53 N.W. 546; Whitney v. Traynor, 76 Wis. 628, 45 N.W. 530; Sexton v. Henderson,47 Iowa, 131. Relator relies on section 8805 of the Revised Codes for 1921, conferring power on this court to dispose of a case finally on the merits. It is conceded that the court has the power. That is not disputed. The point is, this court did not do so. The order of the court was simply a remand in general terms, "reversed and remanded" for insufficiency of the evidence to sustain the findings and judgment, but making no final disposition of the case. The rule is, that where the case is reversed and remanded in general terms, it goes back to the trial court for further proceedings, subject to the judicial discretion of the trial court. The case of State ex rel. La France Copper Min. Co. v.District Court, 40 Mont. 206, 105 P. 721, was a case where plaintiff failed to prove all material facts in the case, and the opinion shows the court assumed plaintiff had produced all the proof he had to the court. In its decision the court merely reversed and remanded case without any specific direction of final disposition, and upon mandamus being brought there, as here, to compel dismissal on the merits, this court said: "This court undoubtedly has the power in all proper cases to make such an order; and, in the future, the authority will be exercised, with a view to putting an end to litigation where the *Page 597 parties have had one fair opportunity to try the issue between them therein." In view of this language, which is generally applicable to law and equity cases alike, is it not fair to assume that had this honorable court intended to dismiss the case by its decision of February 28, 1921, on the merits, such disposition would have been made by the usual order: "Ordered dismissed"?
The question now before the court is, however, foreclosed by the decision in the La France Case, holding that the prayer of the relator "cannot be granted for the obvious reason, as no specific declaration, either to retry or dismiss, was contained in the mandate of this court, the district court was vested with a legal discretion to take such action, not inconsistent with the order of the court, as seemed wise and proper under the circumstances," the opinion further holding that an unqualified reversal entitled plaintiff to another trial, citing California cases.
That a reversal in general terms is not a final decision disposing of the case on the merits is held by the great weight of authority. (Gazos Creek Mill L. Co. v. Coburn, 8 Cal. App. 150,96 P. 359; Smith v. Schlink, 44 Colo. 200,99 P. 566; Wilcox v. Phillips, 260 Mo. 664, 169 S.W. 55;Sloan v. Philadelphia R. Co., 235 Pa. 155, 83 A. 604;Rogers v. Hendrick, 85 Conn. 271, 82 A. 590. See RePusey's Estate, 177 Cal. 367, 170 P. 846; Smith Sand GravelCo. v. Corbin, 102 Wash. 306, 173 P. 16; Riley v. LomaVista Ranch Co., 5 Cal. App. 25, 89 P. 849.) Where plaintiff shows affirmatively and conclusively that he has no case, the court on appeal may finally dispose of the case, but where defects of plaintiff's case consist in omission to prove allegations which may or may not be susceptible of proof, no general rule governs the court in determining whether the action should be dismissed. (State ex rel. La France Copper Co.,supra.) Where a cause is reversed by supreme court with directions to take such further *Page 598 proceedings as shall accord with its opinion, parties are entitled to a new trial in accordance with the law of the case laid down in the opinion. (Chicago R.I. P.W. Ry. v.Lillard, 62 Okla. 63, 161 P. 779; McIntosh v. Lynch,93 Okla. 174, 220 P. 367; Humboldt Sav. Bank v. McCleverty,161 Cal. 285, 119 P. 82; Wolkau v. Wolkau, 299 Ill. 176,132 N.E. 507; Henderson v. Harnes, 184 Ill. 520, 56 N.E. 786.) InHoagland v. Stewart, 71 Neb. 102, 98 N.W. 428, 100 N.W. 133, quoting from the headnote it is said: "Where the judgment of this court upon appeal in equity case reverses the judgment of the trial court and remands the case, but gives no further direction, the trial court is reinvested with discretion to proceed therein as furtherance of justice may require, and unless such discretion is abused, its action will be sustained." (State v. DistrictCourt, 2 Neb. Unof. 385, 96 N.W. 121.) Unqualified reversal nullifies judgment completely. (Sleeper v. Killion,182 Iowa, 245, 164 N.W. 241.) Motion to amend after reversal and remand held within discretion of court, refusal to exercise which was error. (Brown v. Rankin, 108 S.C. 105, 93 S.E. 327;Peterson v. Hoftiezer, 39 S.D. 416, 164 N.W. 1029.) On reversal and remand for further proceedings not inconsistent with opinion, court is authorized to permit amendments; otherwise it would have dismissed the case. (Horton v. Louisville N.R.Co., 199 Ky. 279, 250 S.W. 983.) When a judgment is reversed and cause remanded, the judgment is annulled in toto and the case restored to the condition in which it stood before it was rendered. (Brotherhood of Painters v. Trimm, 19 Ala. App. 429,97 So. 770.)
For the reason that the reversal and remand contained in the opinion of this court of February 28, 1921, and the direction in the mandate in said case, did not finally dispose of or order dismissal of the case, but remanded the cause for further proceedings in the discretion of trial court, the petition formandamus should be denied and the writ discharged. *Page 599
The point is made by counsel for respondents that relator is here making application to this court to add something to its former decision not embodied therein, and that it is requesting this court to reassume jurisdiction of the case, and, in effect, make an additional decision disposing of it on the merits. This the court is without jurisdiction to do, for the reason that on the going down of the remittitur to the court below, the supreme court lost jurisdiction of the case, and cannot add anything to the remittitur or to the decision without recalling the remittitur, and this cannot be done unless mistake or fraud is shown. It has been so held in State v. Reece, 43 Mont. 291,115 P. 681, and Kimpton v. Jubilee Placer Min. Co.,16 Mont. 379, 41 P. 137, 42 P. 102. This rule is also supported by the great weight of authority in other jurisdictions. (Peterson v. Civil Service Board, 68 Cal. App. 752,230 P. 196; Re Ross Estate, 189 Cal. 317, 207 P. 1014; CrenshawBros. v. Southern Pacific Ry. Co., 42 Cal. App. 44,183 P. 208; Haynes on New Trial and Appeal, Rev. ed., p. 1685; Thomas v. Thomas, 27 Okla. 784, 35 L.R.A. (n.s.) 124, 109 P. 825;Moe v. Goodroad, 45 S.D. 271, 186 N.W. 967; Ott v.Boring, 131 Wis. 472, 11 Ann. Cas. 857, 111 N.W. 833; Mayes v. Evans (S.C.), 61 S.E. 657.) It has long been the custom of courts in reviewing the decrees[1] in equity cases where all of the facts were presented on an appeal, and showed that the cause was ripe for an ultimate decision, to make such disposition of the case as the court below ought to have made. As early as the year 1800 Chancellor Kent, inLe Guen v. Gouverneur, 1 Johns. Cas. (N.Y.), at page 508, 1 Am. Dec. 121, pointed out that this was a "leading maxim" of appellate jurisdiction in England; that since our system of jurisprudence was borrowed from that country, in the absence of express and peremptory statutory limitation it would be presumed that this practice should prevail in this *Page 600 country. While the matter is not pertinent to the inquiry presented to us in this case, reference is made to it for the purpose of indicating that our statute about to be referred to does not introduce any new principle of procedure, but is merely declaratory of a practice which has been in vogue in this country long before its enactment.
The statute above referred to is section 8805, Revised Codes of 1921, and provides: "The supreme court may affirm, reverse, or modify any judgment or order appealed from, and may direct the proper judgment or order to be entered, or direct a new trial or further proceedings to be had. * * * In equity cases, and in matters and proceedings of an equitable nature, the supreme court shall review all questions of fact arising upon the evidence presented in the record, whether the same is presented by specifications of particulars in which the evidence be alleged to be insufficient or not, and determine the same, as well as questions of law, unless, for good cause, a new trial or the taking of further evidence in the court below be ordered," etc.
The section was enacted in 1903 (Laws of 1903, 2d Extra Sess., p. 7), and later appeared as section 6253 of the Revised Codes of 1907. Referring to this statute, in Stevens v. Trafton,36 Mont. 520, 93 P. 810, this court, speaking through Mr. Justice Smith, said: "The legislature has power by regulations to establish the procedure in civil and criminal cases, so far as such procedure does not amount to a denial of justice, and has power to declare by law what shall be the practice on appeal. (Jordan v. Andrus, 26 Mont. 37, 91 Am. St. Rep. 396, 66 P. 502.) The evident purpose of the legislature in passing the law above quoted was undoubtedly to expedite the entry of final judgment in cases where the parties were not entitled to trial by jury; to put an end to litigation and avoid the necessity of new trials involving expense and the contingencies incident to delay. These regulations seem reasonable and salutary. To the end, therefore, that this court *Page 601 might enter final judgment in these equity causes, it is provided that the court shall, on appeal, determine the same on the merits, unless for good cause a new trial or the taking of further evidence is ordered."
And in Barnard Realty Co. v. City of Butte, 55 Mont. 384,177 P. 402, Mr. Chief Justice Brantly, in rendering the decision of the court, used this language: "In equity cases, however, such as this, we are required to review and to determine all questions of fact as well as of law, unless for good cause a new trial ought to be ordered. (Rev. Codes, sec. 6253.)"
Again, in Bosanatz v. Ostronich, 57 Mont. 197,187 P. 1009, in passing on a motion for rehearing, the court again referred to this statute in these words: "In equity cases, since the enactment of the section referred to, the court must review the questions of fact as well as those of law, and determine the case on its merits, to the end that equity cases might be thus finally disposed of on their merits, without the necessity of successive trials on the same state of facts."
Application of this statute has been made by this court in numerous other cases, some of which will be referred to in subsequent portions of this opinion.
As appears from the opinion of this court in case No. 4,272, entitled Comerford v. United States Fidelity Guaranty Co.,59 Mont. 243, 196 P. 984 (which for brevity will hereafter be adverted to as the Comerford Case), that action was instituted in the district court of Missoula county against the relator herein and the Kennedy Construction Company as defendants, and its object was (1) to recover judgment against the defendants upon a bond which had been theretofore executed by said Kennedy Construction Company, as principal, and this relator, as surety, in a cause wherein the plaintiff Comerford was also plaintiff and the Kennedy Construction Company was the defendant, according to its terms as written; (2) to obtain a decree reforming said bond and to enforce the penalty thereof after reformation. The defendant Kennedy *Page 602 Construction Company was not served with process and did not appear in the Comerford Case at any stage of the proceedings, but over the objections of the relator herein, and upon the instance of the plaintiff in the action, the cause proceeded to trial against the relator alone as defendant. At the trial of the action the plaintiff prevailed. The court held that the plaintiff was entitled to recover upon the bond as written; also that the bond should be reformed as asked for by the plaintiff, and thereupon entered a judgment in favor of plaintiff and against relator herein upon the bond as reformed.
Upon the appeal to this court this judgment was reversed and the cause remanded. After briefly stating the facts, outlining the plaintiff's contentions and setting out the conclusions of law made by the trial court, the opinion says: "Two questions are presented for decision, as follows: (1) Is the surety liable, under the conditions of the bond as executed, to pay the judgment affirmed on appeal? (2) Was a reformation of the bond justified? Both questions will be treated together, as they involve the same considerations." Incidental reference was made to the fact that the trial had proceeded in the lower court without requiring service to be made upon the Kennedy Construction Company, or its appearance therein, in these words: "The court should have required both obligors to appear, since the appellant insisted thereon, even though the plaintiff is given a several right of action against both the principal and surety."
The court then made an extended review of the testimony introduced at the trial and concluded the opinion in these words: "There is no showing of fraud, mutual mistake, nor the mistake of one party which the other at the time knew or suspected, and reformation of the bond was improper, and the judgment appealed from is without foundation. It is clear that the trial court was in error in finding, as a matter of law, that the surety company is liable upon the bond without reformation, and also that a reformation of the bond should be made *Page 603 as prayed for, and in thereupon entering its final decree on the bond as reformed. The conclusions made by the trial court are inconsistent, and upon neither theory can the judgment be sustained. For the reasons stated, the judgment is reversed and the cause remanded."
This opinion was handed down by the court on February 28, 1921. No remittitur in the case was issued by the clerk of this court until April 6, 1923, when one was issued, to which was attached a copy of the opinion of the court, containing the following direction: "You therefore are hereby commanded that such further proceedings be had in said cause as according to right and justice and the laws of the state of Montana ought to be had not inconsistent with the opinion hereto attached." Thisremittitur was filed in the office of the clerk of the district court of Missoula county on April 7, 1923, and the clerk, as required by section 9753, Revised Codes of 1921, thereupon made an entry in the judgment docket in his office against the original entry of judgment, from which the appeal had been taken, as follows: "Judgment reversed and case remanded as perremittitur filed April 7, 1923." On October 23, 1926, the relator presented to the district court of Missoula county and Honorable Asa L. Duncan, one of the judges thereof, an application praying that a judgment be entered in the cause dismissing the same on the merits, in accordance with the judgment and decision of this court. This application was regularly heard before the district court and denied.
On October 25, 1926, relator filed in and presented to this court a petition praying that an alternative writ of mandate issue, requiring the said district court of Missoula county and the Honorable Asa L. Duncan, one of the judges thereof, to render judgment in said cause in favor of the relator, dismissing the same on the merits, or to show cause before this court why the same had not been done. The alternative writ was issued as prayed for, returnable on November 5, 1926, on which day the respondents filed a response setting forth the reasons *Page 604 why the relator's request for a dismissal of the action on the merits had been denied, which may be summarized as follows: (1) That on December 1, 1922, an order was made in the district court of Missoula county dismissing said Comerford Case; that no appeal was taken therefrom and that it is now too late for the relator to invoke the power of this court by mandamus to compel respondents to grant the relief sought; that subsequent to the making of said order of dismissal on December 1, 1922, certain proceedings had been instituted in the United States district court for the district of Montana upon the original cause of action set out in the Comerford Case, which are still pending therein, and that because this court in case No. 6,043, entitledState ex rel. United States Fidelity Guaranty Co. v.District Court, ante, p. 214, 250 P. 609, had held that the purported order of December 1, 1922, dismissing said action, was void, respondent judge believes, as matter of law, that said cause now stands for trial in the district court of Missoula county whenever it is set for trial; (2) that it was the duty of the clerk of the district court to enter the judgment as directed, and not any part of the duty of the respondent district judge to do so; (3) that, in denying the relator's request for entry of a judgment of dismissal of said cause on the merits, respondents were acting in the legal exercise of the judicial discretion vested in the court by law and in pursuance of the decision of this court in reversing and remanding the ComerfordCase; (4) that the mandate issued out of this court in said cause did not direct the entry of any specific judgment, but merely remanded the cause, so that such further proceedings might be had therein as according to right and justice and the laws of this state ought to be had, not inconsistent with the opinion rendered by this court, and thereby this court lost jurisdiction of said cause, and that it now has jurisdiction only to hear on appeal any judgment that may be rendered therein in said district court. *Page 605
The matter was submitted for final decision upon the relator's petition and the return of the respondents thereto.
The statute (sec. 9848, Rev. Codes 1921) provides that the writ of mandate may issue to an inferior tribunal "to compel the performance of an act which the law specially enjoins as a duty resulting from an office."
We do not understand that there is any dispute between counsel[2] but that it is the province of a reviewing court to construe its own judgments, decrees and orders, and that, where a lower court has misconstrued its mandate, or has acted beyond its powers in construing the same, mandamus will issue to review and correct the action of the lower court. This authority is recognized everywhere. (38 C.J., p. 642, sec. 155.) The principle that, where the performance of a legal duty involves the exercise of judgment or discretion, such judgment or discretion cannot be directed or controlled by mandamus, is too well settled to require the citation of any authority to sustain it.
In case No. 6,043, above referred to, the parties to the present proceeding were before this court upon the relator's application for a writ of supervisory control to require the district court, among other things, to set aside the order dismissing the Comerford Case adverted to in the first subdivision of the respondents' response filed herein. The circumstances leading up to the making of that order are fully set out in the opinion rendered in said cause and need not be here repeated. We there held that said order was wholly null and void as having been made without jurisdiction, which appeared upon the face of the record. Upon a re-examination of the question we are satisfied that under our statute and the decisions of this court, as well as the authorities generally,[3] our conclusion was correct and should not be disturbed. The order being void and its invalidity appearing on the face of the record, it was but a "dead limb upon the judicial tree" which could bear no fruit to the plaintiff. It was a mere nullity and could neither *Page 606 affect, impair nor create rights. As to the relator herein, it is not binding in any way and is subject to impeachment in any action, direct or collateral, and it was not necessary to take any steps to have it vacated, reversed, or set aside. (1 Black on Judgments, sec. 170.)
The fact that the plaintiff in the Comerford Case, after the making of this void order, commenced proceedings in another court upon an identical cause of action, and that they are still pending, does not at all affect the situation. The ComerfordCase is still pending in the district court of Missoula county, and we shall in another part of this opinion consider whether it now stands ready for trial, or whether it stands for final judgment.
With reference to the contention that it is the duty of the[4] clerk of the district court to enter the judgment in accordance with the mandate of this court in the ComerfordCase, our conclusion is as follows: It is not necessary in such a case, that the order reversing the judgment and remanding the cause, give specific directions as to the action which shall thereafter be taken in the lower court, but when the remittitur is filed it becomes the duty of such court to examine the opinion and proceed in conformity with the views expressed in it. (People ex rel. Horberg v. Waite, 243 Ill. 156, 90 N.E. 183.) If the opinion of the supreme court requires the rendition of a judgment by the lower court, it is the duty of the court to proceed accordingly. This calls for the exercise of the judicial power and not the mere ministerial act of entering a judgment after it has been rendered. In that respect this case is distinguishable from State ex rel. Dolenty v. District Court,42 Mont. 170, 111 P. 731, and State ex rel. Anderson v.District Court, 56 Mont. 244, 184 P. 218, which are cited and relied upon by the respondents.
This brings us to a consideration of the main questions[5] presented in this proceeding. The relator contends that since under section 8805, supra, this court is required to review *Page 607 all questions of law and fact on an appeal in an equity case and determine the same unless a new trial or the taking of further evidence in the court below be ordered (Barnard Realty Co. v.City of Butte, supra), so that final judgment may be expedited (Stevens v. Trafton, supra; Bonsanatz v. Ostronich, supra), and because in rendering the opinion in the Comerford Case the court did what the statute requires that it shall do and as a result determined that no recovery could be had upon the bond as written and that the evidence introduced at the trial was not sufficient to justify the reformation of that instrument, and since the order reversing and remanding the cause did not expressly direct a new trial or the taking of further testimony, this was a final decision and determination of the cause upon its merits, and therefore the lower court was not vested with any discretion under the mandate from this court and had no further jurisdiction of the cause except to enter a judgment dismissing it upon the merits.
Respondents, on the other hand, argue that because the court in its opinion in the Comerford Case instead of giving the lower court specific directions what to do, simply reversed and remanded it, upon the filing of the remittitur the parties were placed in the same situation that they occupied prior to the trial, and that it was within the discretion of the lower court to take such action therein as to it seemed best. We cannot yield to the argument of counsel for respondents.
That an action for the reformation of a written instrument and its enforcement after reformation is one in equity is an elementary proposition. "Reformation is not an incident to an action at law, but can be granted only in equity. When relief is granted also on the contract as reformed it means only that the court of equity sees fit to go on and finish the whole case." (United States v. Milliken Imprinting Co., 202 U.S. 168,50 L. Ed. 980, 26 Sup. Ct. Rep. 572.) In such an action the parties are not entitled to a jury trial as a matter of right *Page 608 (Stevens v. Equity Mutual Fire Ins. Co., 66 Mont. 461,213 P. 1110.)
Reverting now to the opinion of the court in the ComerfordCase, we find it declares that there were presented for consideration but the two questions: Whether plaintiff could recover upon the bond as written, and whether a case had been made to warrant its reformation and enforcement. Both of these matters were reviewed in the light of all of the evidence presented in the record. The questions of law involved were determined and applied to the facts, and as a result of such determination it was declared that the judgment could not be sustained upon either of the two theories advanced by the plaintiff. This was a clear compliance with both the letter and the spirit of section 8805, supra. No questions of fact or law other than those determined were presented in the record according to what is stated in the opinion. Under these circumstances the court did not order a new trial or the taking of additional evidence, but reversed and remanded the cause to the lower court.
What, then, was the duty of the lower court under the terms of the remittitur, "that such further proceedings be had in the cause as according to right and justice and the laws of the state of Montana ought to be had not inconsistent with the opinion hereto attached"?
Under the statute, the court could not retry the case or take any additional evidence because it had not been authorized to do so by this court. This court had determined all the facts and the law as the lower court should have determined them, and sent the cause back for further proceedings not inconsistent with that determination. Since under that determination the plaintiff had wholly failed to establish a right to recover, and the court was precluded from taking additional evidence or retrying the case, the only authority it then possessed was to make a judicial declaration that the plaintiff was not entitled *Page 609 to recover from the defendant and to dismiss the cause upon the merits.
In the early case of Soule v. Dawes, 14 Cal. 248, the California court said: "In a chancery cause, where all the proofs are in, and the case fully before the lower and the appellate court, the judgment of the latter is conclusive, when it passes upon the merits of the controversy so presented; and upon the reversal of the decree below, that court can take no further proceedings, unless authorized by the appellate court, except such as are necessary to give effect to the judgment of this court."
A like proposition was before the United States supreme court in the case of Re Sanford Fork Tool Co., 160 U.S. 247,40 L. Ed. 414, 16 Sup. Ct. Rep. 291 [see, also, Rose's U.S. Notes], and it was there said: "When a case has been once decided by this court on appeal, and remanded to the circuit court, whatever was before this court, and disposed of by its decree, is considered as finally settled. The circuit court is bound by the decree as the law of the case, and must carry it into execution according to the mandate. That court cannot vary it, or examine it for any other purpose than execution; or give any other or further relief; or review it, even for apparent error, upon any matter decided on appeal; or intermeddle with it, further than to settle so much as has been remanded." (Butler v. Thompson, 52 W. Va. 311, 43 S.E. 174; American Hydraulic Placer Co. v. Rich,8 Idaho, 570, 69 P. 280; State v. Superior Court of SpokaneCounty, 7 Wash. 234, 34 P. 930; National Investment Co. v.National Sav., L. B. Assn., 51 Minn. 198, 53 N.W. 546;Whitney v. Traynor, 76 Wis. 628, 45 N.W. 530; Sexton v.Henderson, 47 Iowa, 131.)
The case of Kennedy v. Dickie, 34 Mont. 205, 85 P. 982, was an action in ejectment in which an equitable defense had been interposed and the trial court had sustained such defense. The judgment was reversed. This court in the opinion in that *Page 610 case said: "The district court, we think, was in error in deciding the case as it did. At the close of defendant's evidence the plaintiff requested the court to find in her favor. This it should have done, since the defendant did not make out a case upon which he was entitled to recover. The judgment and order are therefore reversed, and the cause is remanded to be proceeded with in accordance with the suggestions herein. Reversed and remanded." After the remittitur in the case was filed in the district court the matter again came on for hearing, whereupon the court made the following finding: "All of the issues of fact involved in the above-entitled action are hereby determined for and in favor of the above-named plaintiff," and a judgment was entered in accordance therewith. The defendant appealed to this court and the judgment was affirmed in Kennedy v. Dickie,36 Mont. 196, 92 P. 528, and in affirming the judgment this court, after referring to section 6253, Revised Codes of 1907 (the same as section 8805, supra), said: "In this case this court did not order a new trial or the taking of further evidence. On the contrary, the court said that the district court erred in deciding the case in favor of the defendant; that it should have decided in favor of the plaintiff, since the defendant did not make out a case upon which he was entitled to recover. The duty of the district court in the premises was plain. No new trial having been ordered, there was but one thing to be done, to wit, enter a judgment in favor of the plaintiff. This the court did."
We do not perceive any difference in legal effect between the mandate of the court in Kennedy v. Dickie, supra, and that contained in the opinion in the Comerford Case, for, as was said in People v. Waite, 243 Ill. 156, 90 N.E. 183: "It is not required that specific directions shall be stated in an order reversing a judgment and remanding the cause, and it is the duty of the court to which the cause is remanded to examine *Page 611 the opinion and proceed in conformity with the views expressed in it. [Citing cases.] It makes no difference whether there is a general direction to proceed in conformity with the views expressed in the opinion or not, because that is always the duty of the inferior court, and if the issue has been determined upon its merits and the cause remanded generally, the court can do nothing but enter a judgment accordingly, if it is a case like this, where there is no right to a jury trial."
The underlying reason for the rule declared by our statute and enunciated by the decisions above referred to is so clearly stated in Wadhams v. Gay, 83 Ill. 250, that we quote therefrom at length: "On the receipt of the mandate and opinion, the superior court was bound to carry into complete effect the decision of this court, not to retry the cause, or place the complainants, the appellees, in a position by which the cause might be retried, as that is the necessary result and effect of an order dismissing the bill without prejudice. It was not competent for the court to grant such an order against the mandate and opinion of this court. In what a lamentable condition would suitors be if the opinions and final orders of this court are to be disregarded by inferior courts. One of the great interests of the public is that an end shall be put to litigation, and when a case has received full consideration in this court, and the merits fully explored, discussed, and settled, and the cause remanded for further proceedings in conformity to the expressed views and opinion of this court, there can be no power remaining, in the court to which the opinion and mandate are sent, to retry the cause or do any other matter or thing in the cause, but to obey the mandate. The opinion of this court was on the merits — they had been declared, by this court, against the complainants. The mandate required of the superior court the execution of the decree of this court, not a retrial of the cause or the entry of any order which might have that effect, and which, unquestionably, was the design of the party *Page 612 asking such an order. The authorities are clear on this point.Skillern's Exrs. v. May's Exrs., 6 Cranch (U.S.), 267,3 L. Ed. 220 [see, also, Rose's U.S. Notes], decided by the supreme court of the United States so early as 1810, is directly on this question, and subsequent cases harmonize with it."
But counsel for respondents say that the rule announced in the foregoing cases is in direct conflict with the decision of this court in State ex rel. La France Copper Co. v. DistrictCourt, 40 Mont. 206, 105 P. 721. That case was grounded upon the decision of this court in Monson v. La France Copper Co.,39 Mont. 50, 133 Am. St. Rep. 549, 101 P. 243, which was an action at law to recover damages from the defendant, alleged to have been sustained by the plaintiff on account of its negligence causing the death of her husband. In disposing of the case on appeal the court merely reversed the judgment and the order overruling the defendant's motion for a new trial. When the case was again brought on for trial in the lower court, the defendant moved the court for a judgment "dismissing said action in compliance with the mandate of the supreme court," which motion was overruled, and it thereupon made application to this court for a writ of mandamus to compel the dismissal, and this relief was denied. It will be noted that the Monson Case was an action at law in which the parties as a matter of right were entitled to have all questions of fact tried before and decided by a jury, and in that respect was wholly different from the ComerfordCase; also that, in reaching the conclusion that the relator was not entitled to the relief sought, the court had under consideration only the first portion of the statute now under consideration, and necessarily made no reference to the later portion thereof, which has to do only with equity cases and matters and proceedings of an equitable nature, and therefore whatever is said in that opinion in the La France Case would have no application in the construction of the latter portion of the section. *Page 613
Finally, it is argued by counsel for respondents that the[6] suggestion in the opinion in the Comerford Case that the Kennedy Construction Company should have been brought in as a party defendant was under the mandate of the court an indication of necessity for a new trial of the action. However, it is a well-established rule that an appellate court will never order a new trial in an equity case for want of proper parties where it is apparent that the plaintiff has no cause of action. In 4 C.J., page 1197, it is said: "The case will not be remanded on reversal to supply a defect of parties where, taking the bill as true, it does not show complainant entitled to relief." And inShropshire v. Reno, 5 Dana (Ky.), 583, the court uses this language: "If the complainant has no equity, he has no right to bring any party into the court. And it would be worse than useless to direct the bill to be retained that he may have an opportunity of bringing parties before the court, when, upon the appearance of all the parties, the bill must be dismissed." Again, in Jameson's Admx. v. Deshields, 3 Gratt. (Va.) 4, the court said: "The reasoning and authorities of the appellee's counsel are quite satisfactory to establish that, where a plaintiff in equity has shown no right to relief, an appellate court will not reverse a decree dismissing his bill, to enable him to introduce new parties, and thereby make a new case upon the merits."
In view of the fact that this court had determined that the plaintiff in the Comerford Case was not entitled to prevail under either of the theories advanced, there was no reason for ordering a new trial, the only purpose of which would have been to open the case so that the construction company might have been made a party defendant. If this had been done and the case had been retried and a judgment for plaintiff entered, this court would, upon an appeal therefrom, have been obliged to again decide that there was no right of recovery. Therefore to have brought in the construction company as a party defendant would have been doing an idle thing. *Page 614
Upon a consideration of all the matters presented to us we are led to the inevitable conclusion that the relator is entitled to the relief sought. It is ordered that a writ of mandate issue as prayed for in relator's petition.
Writ granted.
MR. CHIEF JUSTICE CALLAWAY and ASSOCIATE JUSTICES GALEN and MATTHEWS concur. *Page 615