The opinion of the Court was delivered by
Willard, C. J.On the former hearing in this case this Court set aside the judgment of the Circuit Court, on the two-fold ground *85that the bond and mortgage for the foreclosure of which the action was brought had not been proved, and that a tax deed offered by the defendant had been rejected as unproved, notwithstanding its execution was admitted by a stipulation agreed to by counsel for both parties, &c. Subsequently the Circuit Court referred the cause, with directions “to take and report the testimony de novo.”
The present appeal is from this order. The order of reference was erroneous to the extent that it ordered the testimony to be taken de novo. This case follows the general practice in equity, and all proceedings taken in it prior to the order of reference should have been allowed due weight upon the further reference. The analogies drawn from the effect of an order for a new trial in cases in the nature of actions at law have no application to the present case.
The testimony which had been taken on the first reference was taken for the case and not merely for the purposes of that specified trial, and such testimony is entitled to stand as part of the case in all subsequent proceedings, whether before the Court or a Referee.
The order of reference, independent of the objectionable words just commented upon, is free from objection and may' stand.
The appellant is in error in supposing that the only course left open to the Circuit Court by the judgment of this Court on the former appeal was to dismiss the complaint. ■
The effect of the judgment on appeal merely reached to the extent of determining the character of'certain proofs, demanded by the nature of the issues, and left the case open in the hands of the Circuit Court for further testimony and proceedings.
It is ordered and adjudged that the order of reference appealed from be modified by striking therefrom the words “ de novo,” and that in all other respects it stand as the order of the Court, and that the costs of this appeal abide the event of the action.
McIver, A. J., and Haskell, A. J., concurred.