dissenting. I have suggested, and insist, that the chancellor’s decree should be affirmed because equity does not lend its aid to the enforcement of penalties. There can be no doubt that the "double damage” statute invoked provides for a penalty. Lesser-Goldman Cotton Co. v. Fletcher, 153 Ark. 17, 239 S. W. 742; Weeks v. McClanahan, 227 Ark. 495, 300 S. W. 2d 6.
Even though this case is basically an action at law without any elements of equity jurisdiction and probably should have been tried in the circuit court, this court determines an appeal, as if the case were in chancery, when the parties have so treated it. Ware v. White, 81 Ark. 220, 108 S. W. 831. See also Gray v. Malone, 142 Ark. 609, 219 S. W. 742. The parties here treated the case as if it were in equity. No effort was made to transfer it to law. Trial here in an equity case is de novo, on which a decree will be affirmed if it appears to be correct upon the record as a whole, even though the chancellor may have given the wrong reason for his conclusion. Morgan v. Downs, 245 Ark. 328, 432 S. W. 2d 454. See also Reamey v. Watt, 240 Ark. 893, 403 S. W. 2d 102; Downtowner v. Commonwealth Sec., 243 Ark. 122, 419 S. W. 2d 126; Langley v. Reames, 210 Ark. 624, 197 S. W. 2d 291. This is consistent with the general rule that the appellate court looks to the correctness of the judgment, whatever may have been the trial court’s reason for granting it. Southern Farm Bureau Casualty Ins. Co. v. Reed, 231 Ark. 759, 332 S. W. 2d 615. The failure of appellee to argue the point or cite authority on it is immaterial. Miller v. Dyer, 243 Ark. 981, 423 S. W. 2d 275.
Even if appellee had failed to file any brief whatever, this would not have warranted automatic relief to appellant. The burden is always on the appellant to demonstrate error in the decree. Poindexter v. Cole, 239 Ark. 471, 389 S. W. 2d 869. If he does not do so we affirm on trial de novo even though the reasons for the chancellor’s decree are unsound, if upon the whole record a correct result has been reached. Culberhouse v. Hawthorne, 107 Ark. 462, 156 S. W. 421.
I really feel that the chancellor’s findings in this case, where only slight excuse for holding over was given, are an expression of equity’s abhorrence for penalties, without direct statement of the maxim, if indeed the court’s reliance thereon is of any significance.
We are not able to say exactly what issues were presented to the chancery court. Appellant unquestionably asked double damages as a counterclaim in its answer. Appellant’s motion for summary judgment was filed simultaneously with its answer. Appellee’s response to this motion alleged that there was a genuine issue as to material fact, that appellant was not entitled to judgment as a matter of law and that appellee was entitled to prevail in the case. No other pleading controverting the counterclaim was then due and none has ever been filed. The motion for summary judgment was taken under submission for later action by the chancellor 17 days after it was filed. Appellee did file a $60,000 bond to retain possession and an answer to appellant’s complaint in an unlawful detainer action instituted by appellant in the Circuit Court of Drew County after the filing of the findings of the chancellor on appellant’s motion for summary judgment but before entry of the court’s decree. In appellee’s answer in the later action, he alleged that appellant was not entitled to damages equal to double the rental value of the lands under Ark. Stat. Ann. § 50-509 (1947), but was entitled to recover only the share crop rents upon said lands due or to become due from appellee to appellant. This action was dismissed on motion of appellant on December 4, 1969. The order of dismissal discharged the surety on appellant’s unlawful detainer bond. That record was specifically made a part of the record in this case.
While we know the reasons given by the chancellor for refusing to enforce the penalty, we do not know, and cannot know, what arguments were advanced by appellee in the chancery court. Where the court proceeded to a hearing upon appellant’s counterclaim without any attempt being made to require a reply thereto, the failure to require the reply was a waiver thereof. Cribbs v. Walker, 74 Ark. 104, 85 S. W. 244, on rehearing. No default was sought, so all questions raised by the counterclaim were at issue (if indeed it is necessary to plead equity’s abhorrence for penalties). Pembroke v. Logan, 71 Ark. 364, 74 S. W. 297; Hill v. Imboden, 146 Ark. 99, 225 S. W. 330.
Relief in equity should be granted as warranted by the facts, not on a request for that relief where there is no prayer and the relief is apparent from the facts alleged or where the prayer for relief is general. See Sannoner v. Jacobson & Co., 47 Ark. 31, 14 S. W. 458, Cook v. Bronaugh, 13 Ark. 183; Kelly’s Heirs v. McGuire, 15 Ark. 555; Ross v. Davis, 17 Ark. 113; Shields v. Trammell, 19 Ark. 51; Rogers v. Brooks, 30 Ark. 612; Morgan v. Scott-Mayer Comm. Co., 185 Ark. 637, 48 S. W. 2d 838; Grytbak v. Grytbak (on rehearing), 216 Ark. 674, 227 S. W. 2d 633; Smith v. Smith, 219 Ark. 304, 241 S. W. 2d 113; Taylor v. Taylor, 224 Ark. 328, 273 S. W. 2d 22.
I do consider the cases of Cooley v. Lovewell, 95 Ark. 567, 130 S. W. 574, and Hendrix v. Black, 132 Ark. 473, 201 S. W. 283, to be applicable and the authorities on chancery enforcement of penalties cited in the majority opinion inapplicable. I suggest that the parties moving for summary judgment against the sheriff under Chapter 94, Kirby’s Digest [Ark. Stat. Ann. § 29-209 et seq. (Repl. 1962)] in Cooley had no choice of forum, since the decree under which they claimed was rendered in the chancery court and the officer acted under the processes of that court.
Language from Augusta Cooperage Company v. Bloch, 153 Ark. 133, 239 S. W. 760, relied upon by the majority is dictum. Furthermore, we clearly held that the defendant’s responsive pleading entitled him to a transfer to equity, a situation quite different from that prevailing here. The plaintiff there could not have prevented the transfer or obtained a retransfer. In Dickson v. Love, 149 Ark. 669, 233 S. W. 800, not cited by the majority, we found a liability for treble damages for a part of the period for which the plaintiff had sought to recover, but the removal of the action to chancery was based upon defendant’s prayer for the equitable remedy of specific performance, which the court granted.
I do not take the decision in United States v. Flint Lumber Co., 87 Ark. 80, 112 S. W. 217, to be authoritative here. There was no question of a statutory penalty involved there, nor do I see the damages as punitive damages, as that term is usually employed. All that we did in that case was to apply the common law distinction between the measure of damages for an unintentional trespass and that for a wilful trespass. In the former case the measure is the value of the property in its converted state at the time of trial, less labor expended by the trespasser. In the latter, it is the value of the property at the time of trial in its converted form without deduction for the trespasser’s labor and expense in the enhancement of its value. See Eaton v. Langley, 65 Ark. 448, 47 S. W. 123, 42 L. R. A. 474; Woodenware Co. v. United States, 106 U. S. 432, 1 S. Ct. 398, 27 L. Ed. 230; Hudson v. Burton, 158 Ark. 619, 250 S. W. 898. I also suggest that the intervener in Flint may well have been restricted to the chancery forum. The pleading was filed in an insolvency proceeding in which a receiver had been appointed. By it the United States sought to recover tort damages. It is generally held that consent of the appointing court is essential to the prosecution of a suit against the receiver in another court, in the absence of waiver. See 75 C. J. S. 1004, et seq., Receivers § 333; Walker v. Taylor, 185 Ark. 980, 50 S. W. 2d 590; Ratcliff v. Adler, 71 Ark. 269, 72 S. W. 896.
Appellant has not been imprisoned in the equity court, and the compulsory counterclaim act did not hold it there. It has not at any time sought a transfer of the case to the circuit court, even after filing its unlawful detainer suit or after our remand. This omission was pointed out by the chancellor in his findings on appellant’s motion for summary judgment prior to the first appeal, when he said:
The reason the issue is considered is because the action sounds in Forcible Entry and Detainer, Section 34-1501, et seq of the Statutes of Arkansas, and Courts of Chancery are without jurisdiction of said actions, see McPherson v. Hicks 338 S. W. (2) 201 (p. 203), 232 Ark. 427. * * * despite the fact that the action sounds in Forcible Entry and Detainer, Sigmon does not raise the issue of Jurisdiction and does not plead for possession of the land in issue.
On the first appeal, the chancellor’s decree was rendered upon appellant’s motion for summary judgment, which was denied. The issues had not even been made on the counterclaim for double damages, as appellee had not filed any responsive pleading.
If appellant desired to avoid application of the principles of equity in this litigation, he was free at any time to move to transfer the case to the circuit court. Appellee’s complaint did not state a cause of action in equity. See Gray v. Malone, 142 Ark. 609, 219 S. W. 742; Fletcher v. Pfeifer, 105 Ark. 318, 146 S. W. 864; Comer v. Woods, 210 Ark. 351, 195 S. W. 2d 542.
When a complaint fails to state an equitable cause of action, or the admitted facts show that the plaintiff had no such cause of action, the cause should be transferred to the circuit court upon motion to transfer by the defendant. Ark. Stat. Ann. §§ 27-208 (Repl. 1962), 22-405 (Repl. 1962); Rowe v. Allison, 87 Ark. 206, 112 S. W. 395. See also Ark. Stat. Ann. § 27-210 (Repl. 1962).
The compulsory counterclaim statute did not affect appellant’s right to a transfer in any way. See Wright v. Lake, 178 Ark. 1184, 13 S. W. 2d 826. The motion might have been made before or after the filing of the answer and counterclaim. Ponder v. Jefferson, Standard Life Ins. Co., 194 Ark. 829, 109 S. W. 2d 946. The entertainment of such a motion when made after trial without objection, after submission of the case, and after pronouncement but before entry of a decree, is a matter of discretion with the trial court. Arkansas Const. Co. v. Pidgeon-Thomas Iron Co., 172 Ark. 721, 291 S. W. 57. If the grounds for transfer did not adequately appear upon the face of the pleadings, then appellant could have presented proof to show that the issues were purely legal ones. Haggart v. Ranney, 73 Ark. 344, 84 S. W. 703. Appellant might even have made such a motion after remand. American Surety Co. v. Vann, 135 Ark. 291, 205 S. W. 646. Not having moved to transfer the case, appellant waived its right to do so by going to trial and is in no position to complain when the case is tried as an ordinary action in chancery and equitable principles and procedures are applied and equitable remedies granted. Ark. Stat. Ann. § 27-211 (Repl. 1962); Hemphill v. Lewis, 174 Ark. 224, 294 S. W. 1010; Sledge-Norfleet Co. v. Matkins, 154 Ark. 509, 243 S. W. 289; Organ v. Memphis & L. R. R. Co., 51 Ark. 235, 11 S. W. 96. See also Childs v. Magnolia Petroleum Co., 191 Ark. 83, 83 S. W. 2d 547; Gray v. Malone, 142 Ark. 609, 219 S. W. 742; Sessoms v. Ballard, 160 Ark. 146, 254 S. W. 446; Catchings v. Harcrow, 49 Ark. 20, 3 S. W. 884; Pratt v. Frazer, 95 Ark. 405, 129 S. W. 1088. Relief from penalties is peculiarly in the field of equity and, were it not for statute, relief might, under proper circumstances, even be granted after judgment at law. Nevada County v. Hicks, 38 Ark. 557; Ark. Stat. Ann. § 50-510 (1947).
The majority seeks to-apply the law of the case as a bar to affirmance. I submit that this harsh but necessary rule should have no application here. I repeat that the issues had not been made by pleadings at the time of the chancery court’s decision on the motion for summary judgment before us on the first appeal. We then decided that the chancellor correctly held that six months’ notice of termination was not required, but erred in holding that a three-day notice under Ark. Stat. Ann. § 34-1503 (Repl. 1962) was necessary. We only speculated that notice given by appellant by letter to appellee was a predicate for a claim for double damages under Ark. Stat. Ann. § 50-509 (1947). We said:
There is, however, one fact definitely left for determination. Section 50-509 provides that one who willfully holds over, thus preventing possession to the person entitled thereto, shall pay the person so kept out of possession double the yearly rent of the lands detained for all the time he shall keep the person entitled thereto out of possession. This record does not reflect for hów long the appellant has been, or will be, kept from possession, and this fact will have to be determined at another hearing. Also, while there is nothing in the record before us which reflects that appellee acted in good faith in not surrendering the premises, inasmuch as the case is being remanded anyway, we think it proper to permit Scroggins to offer competent evidence of his reasons for withholding possession. In Lesser-Goldman Cotton Company v. Fletcher, 153 Ark. 17, 239 S. W. 742, this court pointed out that, under the statute:
“* * * to entitle the landlord or lessor to double rents after the termination of the lease term, the holding over by the tenant must be done willfully. The statute is highly penal, must be strictly construed, and cannot be extended by intendment beyond its express terms. A holding over by the tenant under the bona fide belief that he has the right & do so, even though he were mistaken, is not a willful or contumacious holding under the statute where the undisputed facts show, as they do here, that there were reasonable grounds for such belief.”
The decree is reversed and the cause is remanded for the determination of the two issues mentioned.
Our mandate directed that the cause be remanded to the chancery court “for further proceedings to be therein had according to the principles of equity and not inconsistent with the opinion herein delivered.” (Emphasis mine.)
As mentioned in the opinion on the earlier appeal, there was a cross-appeal then by appellee. Since we reversed on the direct appeal, we said no more about the cross-appeal. In it appellee asserted that the chancellor erred in disposing of the litigation on motion for summary judgment because there were several issues of fact upon which testimony should have been heard. In his response to appellant, appellee stated in his brief:
In addition, the lower court correctly noted that Arkansas Statute Section 50-509 has no application to this case. Lesser-Goldman Cotton Co. v. Fletcher, 153 Ark. 17, 239 S. W. 742. The appellee is holding possession of the lands in question under a claim of right arising under a written lease, and the proper action on the part of appellant to regain possession of these lands and to determine the rights of the parties is an action of unlawful- detainer. Only the circuit court has jurisdiction of such an action and not the chancery court.
In its answer filed in this cause the appellant does not ask to be granted possession of the lands, but only to dissolve the restraining order and for double damages. The only remedy which the appellee had was a petition for a restraining order in the chancery court to enjoin the appellant from interfering with the appellee’s right to possession of the demised Iandsl
On March 11, 1969, the appellant did file' an unlawful detainer action in the circuit court of Drew County, Arkansas, cause No. 2151, and this case is now pending in the Circuit Court of Drew County, Arkansas.
In an unlawful detainer action the measure of damages is the reasonable rental value of the lands detained, in the case of farm lands, and for injuries caused by their detention.
On June 17, 1969, the appellant gave appellee the required six months notice to vacate the lands in question and on July 10, 1969, appellee gave written notice to appellant that he would vacate the said lands on January 18, 1970, and deliver possession to appellant.
Arkansas Statute Section 50-509 has no application to the case now before this court and appellant is not entitled to double damages.
It seems to me that there was and is an issue not decided on the former appeal which leaves the present question open for our present consideration. The former opinion has become binding as the law of the case only to the extent that the questions there involved were decided. Baker v. State, 201 Ark. 652, 147 S. W. 2d 17. It is only the law specifically declared on the first appeal that must be followed. In Linograph Co. v. Bost, 180 Ark. 1116, 24 S. W. 2d 321, we said:
Where a case has been to the Supreme Court and been reversed, the law announced on the former appeal is the law of the case. Propositions of law once decided by an appellate court are not open to reconsideration in that court upon a subsequent appeal. Whatever was decided on the first appeal remains the law of the case for all further proceedings. Morris & Co. v. Alexander & Co., 180 Ark. 735, 22 S. W. 2d 558; Fentress v. City National Bank, 172 Ark. 711, 290 S. W. 58. However, the decision on former appeal is the law of the case as to so much ‘of the case as was adjudicated. Henry v. Irby, 175 Ark. 614, 1 S. W. 2d 49; Chicago Mill & Lumber Co. v. Osceola Land Co., 94 Ark. 183, 126 S. W. 380.
The only question adjudicated in this case on former appeal was the right of appellant to maintain the suit. This question was settled on the former appeal and cannot be reconsidered. The other issue raised by the pleadings was not adjudicated on former appeal and is not res adjudicata.
We have previously permitted new issues to be raised on a retrial after reversal and remand. For instance, in American Surety Co. of N. Y. v. Kinnear Manufacturing Co., 185 Ark. 959, 50 S. W. 2d 586, this court refused to apply the “law of the case” from a previous appeal. Upon remand the complaint was amended to allege that an architect was guilty of such inattention and indifference as to imply bad faith. This issue was then submitted to the jury under instructions correctly declaring the law on that subject. On the previous appeal, the court had held a different instruction touching upon the issue, as then presented, to be correct. The reversal was for failure to give that instruction. Thus, one of the parties was permitted, upon retrial, to raise a new issue.
In Morgan Engineering Co. v. Cache R. Drain. Dist., 169 Ark. 473, 275 S. W. 741, the court refused to apply the doctrine. The appellant contended that the circuit court, on trial after remand, was foreclosed from inquiring into the validity of a contract. It asserted that the language of the opinion on the former appeal was an adjudication of the binding effect of the contract and that the trial court and the parties were bound under the law of the case. The reversal on the former appeal was based upon the failure of the trial court to take proof of the value of services rendered under the contract and to find for appellant for that amount. On retrial, an issue was made as to the validity of the appellee district and, incidentally, the validity of the contract. In referring to authorities cited by appellant, we said that those decisions simply announced and adhered to the rule that where an issue had been raised in the court below and has been finally adjudicated on appeal to the Supreme Court the same issue cannot be reopened on another trial. We also said that a remand for further proceedings in accordance with the opinion was in effect a remand for a new trial on the issues that might be presented, and contemplated that proof might be introduced on those issues.
I would affirm on appeal and cross-appeal.