I think the majority opinion is wrong on both reason and authority, (1) because the trial court literally followed the mandate and order of this court, as was its duty, and (2) because the error, if any, in following the order of this court was harmless and did not affect the substantial rights of the defendant.
1. Our system of jurisprudence requires that the trial courts follow the orders of the appellate courts, for, as is well stated by one of the courts, "Is it for the judge below to refuse to obey the order because he thinks the Supreme Court erred? That would be judicial insubordination, which is not to be tolerated." Perry v. Tupper, 71 N.C. 380, 381. The text writers and authorities all agree to this doctrine. In 4 C. J., at page 1221, the rule is stated thus:
"It is the duty of the lower court, on the remand of the cause, to comply with the mandate of the appellate court and to obey the directions therein, without variation, even though the mandate may be or is supposed to be erroneous."
In 3 Am. Jur., at page 730, the rule is stated as follows:
"The mandate of the reviewing court is binding on the lower court and must be strictly followed and carried into effect according to its true intent and meaning, as determined by the directions given by such reviewing court."
This general rule has been consistently adhered to by the former decisions of this court, and it has said that when the trial court does proceed in conformity with the direction of this court, "the judgment of the trial court will not be disturbed." Walker v. Bahnsen, 96 Okla. 133, 220 P. 334.
Applying these rules of law to the facts of this case, we find that this court held that the trial court was in error in sustaining the demurrer to plaintiff's evidence, and reversed the judgment of the trial court with directions "to overruledefendant's demurrer and proceed with the trial of the cause." This court did not direct the trial court to grant a new trial, as is usually done under such circumstances. The language used is plain. It constituted the law of the case, and it was the duty of the trial court to follow it "strictly" or "without variation," as the above authorities say. The procedure to be followed by the trial court when a cause is reversed is not prescribed by the statutes, but it is governed by the direction given by the appellate court, and depends upon the issues and *Page 369 circumstances of each case. Here, a jury had been waived, the case had been partly tried, and the reasonable course for the trial court to pursue was to begin where it had closed by overruling the demurrer and proceeding with the trial by requiring the defendant to put on its defense. This is the course this court ordered, and the trial court adopted, as was its duty. Now, because the trial court followed the mandate of this court "strictly" and "without variation," this cause is reversed, and no authority cited by the majority opinion touches on the precise question involved here, and I find no justification for the reversal on the ground stated, and cannot consent to such action.
2. It is the positive duty of this court to disregard technical errors. The Legislature has enjoined that duty upon us in three different statutes:
"The court, in every stage of action, must disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party; and no judgment shall be reversed or affected by reason of such error or defect." Section 252, O. S. 1931.
"No exception shall be regarded, unless it is material and prejudicial to the substantial rights of the party excepting." Section 388, O. S. 1931.
"No judgment shall be set aside or new trial granted by any appellate court of this state in any case, civil or criminal, on the ground of misdirection of the jury or the improper admission or rejection of evidence, or as to error in any matter of pleading or procedure, unless, in the opinion of the court to which application is made, after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right." Section 3206, O. S. 1931.
The first two sections were adopted from Kansas as a part of the 1893 Code. Section 3206 was written into the 1910 Revised Laws by the Code Commission as section 6005, and the following note was inserted: "History. New section, substantially as recommended by the American Bar Association." These sections were written into the Code of Procedure to get away from the rigors and technicalities of the common-law pleading and procedure. They are remedial, wholesome, and their validity has not been questioned. It is the duty of this court to follow them. The thought back of them is that the law is not an exact science, as is demonstrated by the many decisions of this and other appellate courts where the judges disagree, and the decisions are by divided courts; that it is practically impossible for busy trial judges to conduct contested trials without committing some errors; that the litigants are entitled to but one trial free from prejudicial errors, not free from any errors; that the primary purpose of a judicial trial is to determine and enforce rights of litigants fairly and in accordance with principles of justice; that every reasonable presumption should be indulged in favor of the correctness of decisions of the trial courts, thus making for stability, and discouraging frivolous appeals; that there should be an end to litigation; and that it is more important that the right result be obtained than that the procedure for obtaining it be strictly followed.
These sections of the statutes are in harmony with the view prevailing in the other jurisdictions. 2 R. C. L., p. 230; 4 C. J., pp. 910 to 913. This fact is illustrated by the statement of the rule in 3 Am. Jur., p. 555, where it is said:
"It is a fundamental rule of modern appellate procedure that in order to warrant a reversal, the error complained of must have been prejudicial to the substantial rights of the appellant or plaintiff in error. Error going only to immaterial, minor, or technical questions is not ground for reversal, especially where it does not touch the controlling questions, or where controlling questions are correctly decided. In other words, an appellate court will not search for reasons to reverse a case; the duty rests upon the appellant or plaintiff in error to show that error has intervened to his prejudice." (Citing cases from nearly all the states.)
See, also: 5 C.J.S., sec. 1676, pp. 802-804, and 5 C. J. S., sec. 1894, pp. 1387-1389.
Wherein was the defendant prejudiced by the procedure followed by the trial court? What good purpose would have been served by re-introducing the same evidence before the same judge, who, presumably, was familiar with that evidence at the time he rendered judgment? The majority opinion does not suggest an answer to these questions, and I can think of none. The harmless error statutes were written to apply to just such a situation as we have here.
The authorities cited in the majority opinion do not apply to the facts of this case, and, in my judgment, do not justify a reversal. In Huber v. Mother Aurelia *Page 370 of St. Joseph's Hospital (Idaho 1907) 89 P. 942, the court refused to reverse a case where the trial court did not require the plaintiff to offer his evidence anew, the court saying:
"It was unnecessary, however, for the plaintiffs to produce the witnesses and reexamine them as to the same facts they had presented by them on the former trial. This case was heard before the same judge who had tried it in the first instance, and he is presumed, as a matter of law, to have remembered what they testified to on the previous trial, and if he did not, as a matter of fact, so remember, he had the record before him. The plaintiff offered the record in evidence, and it was considered admitted by the court."
Here, the order of this court "to overrule the defendant's demurrer and proceed with the trial of the cause" made the former evidence a part of the record, and the trial court so considered it.
The trial court followed the mandate of this court, and it is the duty of this court to give effect to that mandate, and to follow the mandate of the harmless error statutes, if it can be said that it was error for the trial court to follow the mandate of this court.
For these reasons, I dissent.