Phelps v. Great Northern Ry. Co. , 71 Mont. 56 ( 1924 )

Opinion:

PER CURIAM.

On a former appeal in this case (66 Mont. 198, 213 Pac. 610) the cause was remanded to the district court with directions to grant the defendant a new trial unless within ten days after the filing of the remittitur the plaintiffs should give their consent in writing that said judgment be reduced in the sum of $1,020 and if such consent was given, thereupon the original judgment should be modified accordingly as of the date of its entry and as so modified should stand affirmed. Subsequent to that decision a remittitur was issued from this court, and within ten days after the same was filed in the district court, the plaintiffs elected to and did file a written consent to the reduction of the original judgment in the sum of $1,020', whereupon a judgment for the reduced amount was duly entered in the district court and from that judgment the defendant has appealed to this court.

We cannot entertain this appeal. The judgment entered by the district court under the mandate of our former decision, in effect became the judgment of this court. The district court had no discretion in the matter. It could give no relief other than that which was specifically pointed out to it.

In Kimpton v. Jubilee Min. Co., 16 Mont. 379, 41 Pac. 137, 42 Pac. 102, the judgment appealed from was reversed and the cause remanded to the district court, with directions to enter a specific judgment in favor of the plaintiffs. In accordance therewith such a judgment was entered in the district court and from it the defendants appealed. When this latter appeal came to be heard this court declined to consider it and ordered the same dismissed (22 Mont. 107, 55 Pac. 918), for the reason that it was in effect an appeal to this court from its own judgment. The same principle applies here. When the plaintiffs filed their written consent to the reduction of the original judgment in the sum of $1,020 the district court had nothing to do except modify the judgment as directed by this court. This it did, and the judgment as so modified stood affirmed and was in effect the judgment of this court.

On the authority of Kimpton v. Jubilee Min. Co., supra,, we think the appeal in this case should be' dismissed, and it is so ordered.

Dismissed.