Original proceeding in mandamus, asking- this court to compel respondent as circuit judge to enter in his court a new order in accordance with and embracing a modification made by this court in an order of the circuit court appealed from. The decision of this court, and a sufficient statement of the facts, will be found in First National Bank v. Cranmer et al., 175 N. W. 881.
Briefly stated, the controversy on that appeal arose over an accounting rendered by a receiver appointed by the circuit court in an action for the foreclosure of a mortgage given by the Cranmers to the First National Bank of Aberdeen, in which the trial court, among other things, ordered and directed the receiver appointed in that action to pay over to the Cranmjers the sum of $1,608.98 remaining in his hands. From that part of the order the -Cranmers took no appeal, the appeal -being from! another distinct part of the order which approved payments made by the receiver for repairs on the mortgaged property, and a payment to *56the First National Bank, of certain sums of money -which the Cranmers claimed were not subject to be so used and applied. The money in controversy was a balance of accumulated rentals of the mortgaged property accruing during the year of redemption. This court held that such rentals could not be so applied, and that such parts of the order were erroneous. The order of this court was that the order appealed from be mbdified so that it direct the receiver—
“to pay to the appellants, in addition to the amount [$1,608.98] now directed to be paid by such judgment [the sumís named as improperly paid out],” and that “as so mbdified the judgment is affirmed, without costs to either party.”
The adjudication was duly remitted to and filed in the circuit court, and plaintiff now demands a mandatory order of this court, requiring defendant, as circuit judge, to enter anew in the circuit court the entire order as modified.
[1] It is elementary law! that a mandatory writ cannot be issued by this court in this case unless it clearly appears that it was the legal duty of the circuit judge, on the return-of the remittitur, to- enter a new: order. The general rule as to the action of the lower court upon the return of a mandate on appeal is thus stated:
“Indeed, where on. the trial the case was fully developed as to every question or fact, it is the duty of the appellate court to reform the judgment in accordance with the facts shown and the views of the appellate court as expressed in its opinion. It is also 'held that the appellate court, in the interest of justice, may take notice of mlatter occurring since the judgment, and may modify the judgmjent to conform to such matters. The power to mlodify is generally by virtue of statutory authority or requirement; the power to render such judgment as the lower court should have rendered, where the appellate court is in possession of all the facts and evidence, or otherwise occupies the same position as the trial court. In other jurisdictions, or in the same jurisdiction where authority to remand for modification is possessed as an alternative mode of relief, the appellate court may, and frequently does, order the necessary modification to- be made by the lower court, instead of making the correction itself, it being held discretionary with the appellate court either to make *57the modification on its own records, or to remand the case to the lower court with specific directions to that court to -make 'such modification.” 4 Corpus Juris, p. 1150, § 3157.
[2] Section 3170, Code 1919, provides that—
“Upon an appeal from a judgment or order, the Supreme Court may reverse, affirm) or modify the-judgment or order. * * * In all cases the Supreme -Court shall remit its judgment or decision to the -court from which the appeal was taken, to be enforced accordingly; and if from a judgment, final judgment shall thereupon be entered in the court below in accordance therewith, except where otherwise ordered.”
In First National Bank of Aberdeen v. Cranmer et al., supra, there was no appeal from- the judgment. The order appealed from was not reversed, b-ut was expressly modified, and, as modified, was affirmed.
A reading of section 3170, Code 1919, suggests a distinction where the appeal is fromi a judgment, and where it is from an order, in that it provides that:
“If from a judgment, final judgment shall thereupon -be entered in the court below in accordance therewith, except where otherwise ordered.”
The statute does not include orders in this provision. Whether this statute requires the circuit court to render and enter a new judgment “where not otherwise ordered,” or whether the entry of such judgment is a mere ministerial act to be performed by the clerk of the lower court, we' are not called upon to determine at this time. We are of the view that the order modified and affirmed by this court became effective when filed in the circuit court precisely as though the order as modified had been originally entered by the trial court itself, and that section 3170 does not require the circuit court to enter, anew, the order as modified. This view is reinforced by the provisions of section 2579, Code 1919, which provides that:
“Upon the decision of any appeal in a civil action by the ¡Supreme Court of this state and filing of the remittitur with the clerk of the court from) which the appeal was- taken, such clerk shall forthwith enter the judgment in favor of the successful party, for the amount of any -costs which he mlay have recovered in the Supremle ’Court and such judgment shall have the same *58force and effect as if rendered by the court from, which the appeal was taken.”
In such case the judgment of this court automatically becomes the judgment of the circuit court.
[3] Whether the modified order should be specifically enforced by the trial court, or whether it may be modified or changed by that court upon a proper proceeding, and the disclosure of facts justifying a modification thereof, are questions Which primarily must be determined by the trial court, and cannot be considered or 'determined by this court in a mandamus proceeding.
The order granting the writ and the writ will therefore he vacated, and the proceeding dismissed at plaintiffs’ costs.' It will be so ordered.