(dissenting).
I take it that this reversal is not on the ground that the trial court misconstrued the mandate ■ or opinion of this court. In the light of the first letter-opinion of the trial judge, the apprehended mistake as to the mandate has disappeared like mist before the sun. If our attention had been directed to the first letter instead of the second, it is inconceivable that the majority would have had any apprehension on the subject. The following is a brief excerpt from the judge’s first opinion: “I have weighed the evidence from all angles and am convinced that it shows by clear and convincing proof that the agent of the company was guilty of fraud. * * * I have therefore reached the conclusion from all the testimony and reasonable inferences that plaintiff is entitled to judgment.”
No reversible error in the record is discernible, but our decision puts the trial court in error for doing what this court directed it to do, what the appellant in writing moved it to do, and what all parties expressly consented that it should do, viz., proceed to trial and final judgment on the merits. A stronger case of waiver is difficult to conceive. A motion to stay proceedings is a matter in abatement and comes within Rule 12(g) and (h) of the Federal Rules of Civil Procedure.
This case has been tried twice by the same judge and'on the same evidence. On the first trial, the court below decided for the defendant, and rendered judgment dismissing the complaint. That judgment was reversed by this court and a new trial ordered. Thereupon with the consent of all the parties, the same record was submitted to the same judge for final decision on the merits. Not one word of additional testimony was offered, and judgment was rendered for the plaintiffs.
We have, then, a case where both sides were ready for.trial and consented in writing for the court to proceed to final judgment. There is nothing in the record to indicate that any one desired a consolidation or a stay. It is not necessary to have a consolidation in order to grant a stay. There is already a stay in Broocks v. Mor-ing. It is not necessary to remand this case for a stay to be granted. This court, on appeal, has the same right to grant a stay as the district court had when the case was before it. We have jurisdiction to grant a stay in this case, but we have no jurisdiction to terminate the stay in force in Broocks v. Moring, because that case is not before us. We can give directions to the court below where there is appellate jurisdiction, not in other cases pending in the district court.
What complications involve us if we try to do justice according to our idea of what is right though not within the framework of the law!