dissenting. I think that the chancellor erred in permitting the plaintiff, after the case was remanded, to bring in a new cause of action by amendment to the' complaint. No doubt that procedure would have been permissible had the case been tried in the circuit court; for it is well settled that when an action at law is remanded for a new trial the cause stands as if there had never been a trial, and the pleadings are therefore open to amendment. Stewart-McGehee Const. Co. v. Brewster, 176 Ark. 430, 3 S. W. 2d 42; Sanders v. Walden, 214 Ark. 523, 217 S. W. 2d 357, 9 A. L. R. 2d 1040.
In equity, however, the rule is and should be quite different. Chancery appeals, unlike those at law, are tried de novo by this court, and ordinarily we render final judgment on the record without having to remand the case. Occasionally it is necessary, as it was in this instance, to send the cause back for additional proof on a particular issue; but we have repeatedly held that the chancellor is then limited to that issue and cannot permit the injection of new issues that should have been presented at the original trial. The rule was clearly stated in Felker v. McKee, 154 Ark. 104, 241 S. W. 378:
“The only question presented for determination on this appeal is whether the court erred in overruling appellant’s motion to permit him to offer further proof upon two of the issués presented by the pleadings in the cause. His case was submitted upon the merits in the original trial. Ample opportunity was given him to fully' develop his case upon all issues presented by the pleadings'. To construe a reversal and remand of a cause for further proceedings, which had been submitted originally upon the merits, to mean that appellant might further develop his cause would enable him to proceed in his case by piecemeal and try it over every time he secured a reversal ad infinitum.”
Similarly, it ivas held in Cruce v. Hill, 156 Ark. 224, 245 S. W. 485, a chancery case, that a new issue could not be raised by an amendment to the pleadings after remand. “The issue of compensation as commissioner was brought into the ease only by amending the pleadings after the remand of the cause and taking further testimony, and, as has been said, no authority for that action was given.”
In the case at bar there ivas no suggestion on the first appeal that the tax sale ivas void because the plaintiff had attempted to pay his taxes and had been prevented by the collector from doing so. That is a wholly new issue that was not originally raised either in the pleadings or in the proof. Our statement in the first opinion ivas this: “Since the proof was not fully deA7eloped on the question of whether the lots Avere subject to taxation for the year 1941, Ave have concluded that justice Avould be best served by a further hearing-on that issue. The decree is accordingly reversed and the cause remanded for that purpose.” In view of our earlier holdings I think it plain that this direction did not permit the appellant to bring- into the case a neAv issue that should have been pleaded and proved when the ease was first tried on its merits.