dissenting.
I respectfully dissent from that part of the majority opinion which holds the opinion in Glissmann v. Bauermeister, 146 Neb. 197, 19 N. W. 2d 43, to be a nullity and *153of no force and effect insofar as such opinion purports to make a determination upon the matters presented by supplemental pleadings or anything else except the accounting and judgment directed by the supplemental opinion in Glissmann v. Bauermeister, 139 Neb. 354, 297 N. W. 617.
The majority opinion recites the district court was without power to deal therewith and of course this court, on the appeal, was restricted in the same manner as the district court, citing Drieth v. Dormer, 148 Neb. 422, 27 N. W. 2d 843.
The writer has no quarrel with the rule in the cited case when it applies. However, as will be shown later, the principle is not applicable to Glissmann v. Bauermeister, 146 Neb. 197, 19 N. W. 2d 43.
As stated in the majority opinion, detailed history of the litigation appears in Glissmann v. Bauermeister, 146 Neb. 197, 19 N. W. 2d 43, and it is deemed unnecessary to again set it out. Reference will be made to the facts as occasion requires. Likewise, reference will be made to the cases of Glissmann v. Orchard, 139 Neb. 344, 297 N. W. 612, and more especially to the case of Glissmann v. Bauermeister, 139 Neb. 354, 297 N. W. 617, on rehearing 139 Neb. 362, 299 N. W. 225, from which this appeal originates.
There is no question but that in the case of Glissmann v. Orchard, supra, which was an action in equity brought by Tena E. Glissmann v. Edmond H. Orchard and his wife, defendants, for a declaratory judgment to settle the amount of her indebtedness under a lease and option agreement, this court entered judgment finding that the indebtedness on the lease and option of Orchard was in the amount stated, $26,000, and that in order to retain said premises under the theory that said lease and option were an equitable mortgage, Orchard should be paid $26,000, as provided therein. The date of redemption, fixed in the decree of the district court, having expired nine months from October *15431, 1939, said redemption date was fixed at three months from the date of the mandate therein. No motion for rehearing was filed.
It is true that Tena E. Glissmann having the right to redeem failed to do so. This court, in Glissmann v. Bauermeister, 146 Neb. 197, 19 N. W. 2d 43, called attention to the fact that she had not redeemed. There was no attempt to relitigate this phase of the case for the reason that Glissmann v. Orchard, supra, adjudicated the matter. There was, as stated in the majority opinion, a proper foreclosure of the mortgage. Likewise, in Glissmann v. Bauermeister, 146 Neb. 197, 19 N. W. 2d 43, it is recognized that the Glissmanns had parted with possession of the premises under date of March 1, 1942. There was no attempt to relitigate this phase of the case in Glissmann v. Bauermeister, 146 Neb. 197, 19 N. W. 2d 43. This matter had been terminated in the county court, as disclosed by the record, from which no appeal was taken, and the judgment was final. And, as stated in the majority opinion, any contention tO' the contrary would be untenable.
In the case of. Glissmann v. Bauermeister, 139 Neb. 354, 297 N. W. 617, this action in equity was brought by Harold W. Glissmann. His mother assigned to him the interest she received from her husband in his father’s estate. This action was predicated by him against his aunt on this assignment. Other defendants were also brought into the action, the purpose being to obtain certain money held by the Happy Hollow Club, Inc., and trustees thereof, payment of which to plaintiff was refused because Serena E. Grabow had served notice that her interests in said fund were prior and superior to the interests of the plaintiff. The plaintiff asked for $2,000 damages.
Briefly referring to the factual situation as developed in this litigation, it is true, Serena E. Grabow pledged $5,500 of her share in her father’s (Hans C. Glissmann) estate to Edmond H. Orchard in connection with the *155lease and option agreement here involved. By exhibit No. 33 appearing in the record in this litigation and as set out in Glissmann v. Orchard, supra, Henry C. Glissmann is purported to have sold and assigned to Serena E. Grabow and her heirs, all his right, title, and interest in his father’s estate. This court held that to allow Harold W. Glissmann, the son of Henry C. Glissmann, to secure the payments due on his father’s share in the Hans C. Glissmann estate which was pledged to his aunt, Serena E. Grabow, would violate all equitable principles and in Glissmann v. Bauermeister, 139 Neb. 354, 297 N. W. 617, referring to exhibit No. 33 heretofore mentioned, this court stated as follows: “By exhibit No. 33, entered into by the two parties, Serena E. Grabow and Henry C. Glissmann, he pledged to her all his rights and share in the estate of his father if she would enter into the contract with Orchard, which she has been compelled to carry out by Orchard, * * The court reversed and dismissed the decree of the district court, which means that Harold W. Glissmann had no cause of action and his rights were inferior to those of Serena E. Grabow.
As stated in the majority opinion, just prior to the date of expiration for motion for rehearing, Serena E. Grabow and other appellants filed a motion to clarify the court’s opinion. This court in response thereto held that having obtained jurisdiction in equity of a cause for any purpose it will retain it for all, and will proceed to a final determination of the case, and adjudicate all matters in issue, and thus avoid unnecessary litigation. See Buchanan v. Griggs, 20 Neb. 165, 29 N. W. 297.
This court then entered an additional judgment which appears in the supplemental opinion, 139 Neb. 362, 299 N. W. 225, as follows: “judgment is hereby entered in favor of Serena E. Grabow on her counterclaim and cross-petition against the plaintiff and defendants Henry C. Glissmann and Tena E. Glissmann for all moneys due *156from defendant Happy Hollow Club, Inc., or from defendant Daniel C. Cary, and representing the one-eighth interest of Henry C. Glissmann in the estate of Hans C. Glissmann, whether said moneys are in the hands of F. H. Bauermeister, former trustee, Henry J. Moeller, present trustee, or are still in the hands of Happy Hollow Club, Inc., or Daniel C. Cary; and the district court is further directed to enter judgment in favor of Serena E. Grabow and against defendants Bfenry C. Glissmann and Tena E. Glissmann for such sums as that court finds have been received by Henry C. Glissmann, Tena E. Glissmann and Harold W. Glissmann from and after March 28, 1929, together with interest thereon from date so received, and which said sums represent payments on the aforesaid share of Henry C. Glissmann in the estate of Hans C. Glissmann.”
The majority opinion holds that Henry C. Glissmann assigned to Serena E. Grabow all of his right, title, and interest in his father’s estate which is an absolute conveyance to her of such interest, and constitutes a complete, final and conclusive adjudication.
A mandate was entered by this court on October 6, 1941, and Serena E. Grabow filed a motion for judgment on the mandate. The district court did not enter judgment on the mandate in conformity with the motion, instead it permitted the filing of further pleadings for and in behalf of the parties at interest; appointed a master commissioner who held a hearing, took further evidence, and made findings from which it entered a judgment different from the judgment directed by this court as set forth in the mandate, which resulted in an appeal by Serena E. Grabow to this court, Glissmann v. Bauermeister, 146 Neb. 197, 19 N. W. 2d 43. This court, after a recitation of the facts, made the following observation as constituting the crux of the appeal before the court: “We set forth only that part of the subsequent proceedings to the filing of the motion for judgment on the mandate as may be pertinent to a determina*157tion of this appeal.” We then set forth the evidence before the master commissioner with reference to the accounting which we deem unnecessary to restate, however we make reference to the opinion, pages 201, 202, where the evidence may be found.
In this connection we cited State ex rel. Johnson v. Hash, 145 Neb. 405, 16 N. W. 2d 734, wherein this court held: “Where a mandate of the Supreme Court makes the opinion of the court a part thereof by reference, the opinion should be examined in conjunction with the mandate to determine the nature and terms of the judgment to be entered or the action to be taken thereon.”
In Glissmann v. Bauermeister, 146 Neb. 197, 19 N. W. 2d 43, we said: “In the opinion in State ex rel. Johnson v. Hash, supra, it is said: ‘It will be noted that the mandate makes the opinion of the court a part thereof by reference. Under such circumstances, the opinion of the court can properly be examined in determining the nature and terms of the judgment to be entered or action to be taken. This seems to be the rule when the opinion is made a part of the mandate * * *.’ See cases cited therein.”
As we held in Glissmann v. Bauermeister, 146 Neb. 197, 19 N. W. 2d 43, in view of the foregoing: “Where the action to.be taken * * * necessitates the taking of additional evidence to ascertain the status of the amounts due from an estate to parties who have pledged their interest therein, the lower court may proceed, if desirable, to appoint a master to take evidence, make findings therefrom, from which the court may enter a proper judgment to conform to the original opinion attached to and made a part of the mandate by reference.”
“ ‘Where the mandate is ambiguous or uncertain the lower court may apply the usual rules of interpretation in its construction and may examine the opinion of the appellate court to ascertain the true intent and purpose of the mandate.’ 5 C. J. S., sec. 1963, p. 1494.” Glissmann v. Bauermeister, 146 Neb. 197, 19 N. W. 2d 43.
*158The opinion and the supplemental opinion in the case of Glissmann v. Bauermeister, 139 Neb. 354, 297 N. W. 617, were attached to ánd made a part of the mandate. The district court, considering the opinion and supplemental opinion attached to the mandate and in accordance with the authorities on the subject, found that by exhibit No. 33, the contract set out in the opinion entered into by both parties, Serena E. Grabow and Henry C. Glissmann, he pledged to her all of his right and share in the estate of his father if she would enter into the contract with Edmond H. Orchard.
This court said, in Glissmann v. Bauermeister, 146 Neb. 197, 19 N. W. 2d 43: “The debt or liability secured by Henry C. Glissmann’s pledge is the liability of Serena E. Grabow to Edmond H. Orchard on a lease option agreement, and when the extent of that liability has been determined in dollars and cents and Serena E. Grabow has been restored her security pledged to Edmond H. Orchard intact or with any diminution made good by Henry C. Glissmann and his assigns, Henry C. Glissmann or his assigns are entitled to a return of such of the remaining part constituting his interest in his father’s estate held in accordance with his pledge.” This was necessary, because it is apparent from a careful reading of the opinion in Glissmann v. Bauermeister, 139 Neb. 354, 297 N. W. 617, and the supplemental opinion appearing at 139 Neb. 362, 299 N. W. 225, that an ambiguity exists between the opinion and the supplemental opinion. It is apparent from the opinion, 139 Neb. 354, 297 N. W. 617, that this court did not find that Serena E. Grabow should receive both shares, but that each party had pledged his or her share in their father’s estate.
We refer again to the language appearing in Glissmann v. Bauermeister, 139 Neb. 354, 297 N. W. 617: “To now allow his son to secure the payments due on his father’s share which were pledged to his aunt would violate all equitable principles.” And the further lan*159guage: “By exhibit No. 33, entered into by the two parties, Serena E. Grabow and Henry C. Glissmann, he pledged to her all his rights and share in the estate of his father if she would enter into the contract with Orchard, which she has been compelled to carry out by Orchard, * *
The foregoing language is explicit and definite, and constitutes the holding of this court that Henry C. Glissmann pledged to Serena E. Grabow his interest in his father’s estate. We have set forth the law that applies under such circumstances.
In the opinion in Glissmann v. Bauermeister, 146 Neb. 197, 19 N. W. 2d 43, we remanded the case for further proceedings, as follows: “We conclude that any money up to the amount that Serena E. Grabow is entitled to receive as her share of her father’s estate and now in her hands should be credited to her; that any remaining liability chargeable to Serena E. Grabow by Edmond H. Orchard by reason of the lease option agreement be finally determined, and such amount as the court may find be paid from the share of Henry C. Glissmann and his assigns that they have in the estate of Hans Glissmann, and the remaining pledged property, if any, under the control of Edmond H. Orchard be released by him; that Henry C. Glissmann and his assigns pay all costs in the district court and in the supreme court, including the fees awarded the master and the attorney for Serena E. Grabow in the district court. Any moneys thereafter remaining in the hands and under the control of Serena E. Grabow, the trustees, or the court, constituting the share of Henry C. Glissmann and his assigns in the Hans Glissmann estate, should be paid to Henry C. Glissmann or his assigns as the court may order.”
It will be observed that the remand was in accordance with the pledge of Henry C. Glissmann in his father’s estate to Serena E. Grabow and the pledge of Serena E. Grabow to Edmond H. Orchard. By the majority *160opinion we are now relitigating the subject matter contained in Glissmann v. Bauermeister, 139 Neb. 354, 297 N. W. 617, changing the holding therein where we determined a pledge existed, which is a final adjudication, to a holding now that there was an absolute assignment by Henry C. Glissmann to Serena E. Grabow of his interest in his father’s estate. I submit that that is not what this court said in the original opinion in Glissmann v. Bauermeister, 139 Neb. 354, 297 N. W. 617.
The writer can well agree that there should be an end to litigation, and there has been an end to this litigation as pointed out in Glissmann v. Bauermeister, 146 Neb. 197, 19 N. W. 2d 43, and the remand pointed out specifically the manner in which the litigation should terminate. There is no occasion to endeavor to relitigate matters in the manner and form as determined in the majority opinion, and I am not in accord with this type of procedure.
Wenke, J., and Kroger, District Judge, join in this dissent.