dissenting. Not being able to concur in all of the conclusions reached by the Hon. D. A. Townsend, who sat at the hearing of this case in the place of Mr. Justice Gary, disqualified by reason of having been of counsel in the cause, I will state briefly the grounds of my dissent.
The first, second, and thirteenth grounds of appeal, in different forms, impute error to the Circuit Judge in the course pursued by him in the hearing of the cause, when sent back by the Supreme Court. For a proper understanding of the questions presented by these exceptions, it is best to state from the record precisely what occurred. It seems that at the hearing of a former appeal in the cause, reported in 41 S. C., 304, this court, finding that his honor, Judge Izlar, from whose judgment the previous appeal had been taken, had failed to decide or even consider the question of homestead presented in the pleadings, sent the case back to the Circuit Court, for the purpose of having that question considered and decided; the language of this court, in reference to the question of homestead, being as follows: “It does not appear that this question was considered by the Circuit Judge, or decided by him; certainly it is not mentioned in the decision, and, therefore, it cannot be considered as properly before this court. * * * The case must, . therefore, go back to the Circuit Court, for the purpose of hearing and determining the question of homestead, and how far the amount of damages to which the plaintiffs are entitled may be affected thereby;” and judgment was rendered accordingly.
From the “Case,” as prepared for the argument of the present appeal, it appears that when the cause was called for trial, “The plaintiffs’ attorneys stated that they were not ready for trial, as the case would require some testimony. After hearing the pleadings and the judgment of the Supreme Court, the presiding judge, Ernest Gary, said that the judgment of the Supreme Court was mandatory on him to decide the question *311of homestead in the ease, as sent back to (manifestly a misprint for ‘by’) the Supreme Court. But if, upon the further hearing of the case, it appeared to the court that further evidence should be received, the court would permit such evidence to come in. No such evidence was offered at the hearing, and the cause was heard upon the evidence in the printed brief. The case then proceeded to trial, by reading the complaint and answer, and the extracts from the testimony given on the former trial, which are put in this brief.” It is due to the Circuit Judge that I should add that, in his order settling the “Case” for the present appeal, after directing such amendments as would make the statement read as above copied, the following language is used: “In other words, the reason assigned by the plaintiffs’ attorneys for a continuance did not appear to me to be sufficient to grant the continuance asked for, and in consequence I ordered the cause to proceed to trial.”
It seems to me from the foregoing statement, which I have endeavored to make as fully and fairly as possible, that the real question -made before the Circuit Judge when the case was called for trial was — not the ordinary motion for a continuance upon the ground of the absence of witnesses- — but whether the ease should be heard on the testimony previously taken before Judge Izlar, without the privilege to either party to offer any additional testimony they, or either of them, might desire to adduce. This is apparent from the fact that the “Case” does not show that any formal motion for a continuance was made, but simply a statement made by plaintiffs’ attorneys that testimony would be required in the cause. In response to this proposition the Circuit Judge, after hearing the pleadings and the judgment of the Supreme Court, said that such judgment “was mandatory on him to decide the question of homestead in the case as sent back (by) the Supreme Court.” That, it seems to me, necessarily implies that the case was not to be heard de novo, but upon the record “as sent baelc.:} Why the use of the term “mandatory” (for every judgment of the Supreme Court is mandatory), unless it was to signify, by the use of that term, that the Circuit Judge construed the judgment of the Supreme Court as positively directing that the Circuit Court should hear *312the question remanded, not de novo, but upon the record as sent back. This view is confirmed by the succeeding language: “But if, upon the further hearing of the case, it appeared to the court that further evidence should be received, the court would permit such evidence to come in.” This language plainly implied that the ruling was, that the case should be heard upon the testimony previously taken, unless it should appear to the court — -not unless it should be desired by either party — that further evidence was necessary, in which event such evidence would be received. But as the “Case” does not show that the Circuit Judge gave any indication that further evidence appeared to him to be necessary, the attorneys for plaintiffs are not to be regarded as in any default in failing to offer any further evidence. Indeed, after the ruling above stated, if they had attempted to offer further evidence, their conduct might have been regarded as, at least, bordering on contempt, in disregarding such ruling.
The next inquiry is whether there was any error in such ruling. The well settled rule, as I understand it, is, that when a judgment of the Circuit Court is reversed, either in whole or in part, in a law case, and a new trial ordered of the whole case, or the part reversed, that such new trial must be conducted j ust as if there had been no previous trial; and hence the testimony as taken down at the former trial cannot be used except by consent on the new trial, and that the parties are at liberty to introduce any additional competent testimony upon such new trial that they, or either of them, may desire to offer; though testimony which has been taken by commission and used at the former trial may be again offered upon the new trial. See 16 Am. & Eng. Enc. L., 676, and the cases there cited: Walton v. Bostick, 1 Brev., 162; Pulaski v. Ward, 2 Rich., 119, and Hosford v. Wynn, 26 S. C., 130. Now as in this case the judgment of Judge Izlar, in so far as the question of homestead was concerned was reversed, and the case remanded to the Circuit Court for the purpose of having that question considered and decided, a new trial of that issue was ordered, which, under the rule above stated, should have been conducted just as if there had been no former trial; and hence there was error *313in practically denying the legal right of the plaintiffs to offer any testimony upon that issue, which they might desire to offer, and in considering and deciding that issue upon the testimony previously taken before Judge Izlar; for in my judgment the testimony as previously taken was not admissible except by consent, and of such consent I find no evidence in the record. True, it does not appear that any objection was formally interposed by consent for plaintiffs, when it was offered in the form of the notes of testimony taken at the former trial; but under the ruling made at the outset of the trial, as I understand it, and as counsel for plaintiffs evidently understood it, such an objection would have been not only fruitless but also in open disregard of such ruling.
In the case of Cunningham, v. Cauthen, ante, 95, which has been cited to show that the Circuit Judge was justified in declining to hear additional testimony, is not in point. In that case, which was a case in equity and not a case at law, as this is, the referee had charged the administrator with the premium on gold on the amount of all the notes taken at a sale made by him, simply because the advertisement of the sale stated that such notes should be payable in gold or its equivalent, and this court, in its former decision (41 S. C., at page 136-7,) held that this was error, and that the administrator should be charged only when it appeared that the premium had been collected by him, and the case was sent back simply for the correction of this error. The referee construing the decision of the Supreme Court to be‘a direction to reform the account previously stated in accordance with the views of that court, declined to hear further evidence upon the subject; and upon the second appeal the position was taken that the referee had erred in declining to receive further testimony, and this court, in disposing of the second appeal, after stating the question, used the following language, which may be found ante, at page 106: “When the plaintiffs applied to the referee to be allowed to introduce new and additional testimony, the referee declined to hear it, and ■ now this refusal is assailed as erroneous. In cases where new. trials are ordered, of course such trials are de novo. But in a cause in equity, where the testimony on all the issues has been *314fully taken and reported to the court by the very referee to whom the duty is confided of correcting a few among the many of his former conclusions, it does not seem that additional testimony could be admitted without the usual incidents to new testimony, namely: fresh questions, etc. We might have been more explicit in our former judgment, but, as it is, we think the referee correctly construed our decision. We did not mean thereby to open afresh all these matters.”
It is manifest that in the case of Cunningham v. Cauthen, this court based its decision upon the ground that, under a proper construction of the former decision of this court, it was not intended to open afresh any of the issues in the case, but that the referee should simply reform the account in the single particulars indicated. But the present is a very different case. Here the Circuit Court has failed altogether to decide one of the material issues in the case, and hence a new trial of that issue was rendered absolutely necessary, and was ordered. Upon well settled doctrine, such new trial should have been de novo, and hence either party had the legal right to offer any testimony, otherwise competent, that might be desired; and such legal right could not be made to depend upon whether “it appeared to the court that further evidence should be received.” And furthermore, upon such new trial the notes of testimony taken before Judge Izlar were not admissible, except by consent, and it does not seem to me that it can properly be considered that there was any such consent on the part of the plaintiffs. It seems to. me, therefore, that the judgment appealed from should be reversed and the case remanded to the Circuit Court for a new trial, upon which either party may be at liberty to offer any testimony, otherwise competent, upon the issue which was sent back to be considered and decided by the Circuit Court.
Under this view of the case, it certainly is not necessary, and would scarcely be proper, for me to consider any of the points raised by the grounds of appeal, going to the merits of the case, for, according to my view, such points are not now properly before this court.
Judgment affirmed.1
This case completes the cases of November Term, 1894.