(dissenting in part). I cannot agree that under our mandate on the former appeal (Olson v. Milwaukee Automobile Ins. Co. 266 Wis. 106, 62 N. W. (2d) 549, 63 N. W. (2d) 740), the plaintiff Olson had any right to participate in the second trial or to seek any relief therein against the appellants.
We concluded upon the first appeal that both plaintiffs had valid judgments against the defendant Welch and his insurance carrier for the full amount of their damages and, therefore, that it would be unfair to delay their realization upon such judgments by making the plaintiffs parties to the second trial. For that reason the original mandate provided “for a new trial only upon the issues raised by the cross complaints of the defendantsThe plaintiffs filed no motion for rehearing or to correct the mandate, apparently being satisfied at that time with such disposition of the appeal.
However, the defendant Voshell and his insurance carrier moved for a rehearing. In their brief in support of such *409motion they pointed out that the cross complaint of the defendant Welch sought recovery of damages against Voshell and his employers for the damages to Welch’s automobile and it would be unfair to permit Welch to again litigate such cause of action inasmuch as he had not appealed from the judgment which had dismissed such cross complaint. Our memorandum opinion, rendered in disposing of such motion for rehearing, recognized the justice of such contention and provided for the amendment of the mandate so as to confine the new trial to the issue of Voshell’s negligence.
It is clear that the amended mandate was not entered for the purpose of enlarging the scope of the issues to be tried in the new trial but rather in order to narrow the same and eliminate Welch’s cross complaint. Nevertheless, the trial court at the new trial erroneously construed the amended mandate as having enlarged the scope of the issues to be retried so as to permit the plaintiff to come in and secure a judgment against Voshell and his employers.
The fact that this court, in view of the new fact brought to light on this appeal that Welch’s insurance policy contained a policy limit which prevented full recovery of the plaintiffs’ judgment against the Insurance Company, may have made a mistake in its mandate did not accord the trial court the right to correct the same. Only this court upon timely motion could have done that.
For this reason, the judgment in favor of the plaintiff Olson against Voshell and his employers should be reversed.