Davis v. Morris , 259 S.W. 592 ( 1924 )

On motion to recall mandate. Motion granted. Judgment (257 S.W. 328) corrected. Appellant has filed a motion to recall the mandate issued in this cause, alleging, in substance, that the district court and the attorneys for appellee take the view that the effect of the judgment of this court, rendered November 7, 1923, is a final judgment in favor of appellee against appellant for $1,560, with interest thereon from October 10, 1923; and that there is no longer under said judgment any issue to be tried by the district court.

While we think it sufficiently clear from the opinions of this court, handed down on October 10 and November 7, 1923, and the judgments entered upon such opinions, that the issue of the ownership of the cattle, damage to which is the subject-matter of this suit, was to be tried in the trial court, and judgment rendered in accordance with the result of such trial as applied to the findings of the jury upon the former trial in the district court, interest upon the amount which might be awarded upon such finding to run from the date of the trial court's former judgment; still the language of the opinion of November 7th, to the effect that "the judgment reformed shall read that appellee do have and recover of appellant the sum of $1,560 as damages to the cattle, and for interest thereon at the rate of 6 per cent. from and after the date of judgment until paid," may lead to some confusion and divergence of view in construing the effect of the opinions and judgments of this court. For that reason we think the mandate ought to be recalled, and the judgment of this court redrafted so as to preclude the possibility of any misconception of what the court intended to adjudicate.

In re-examining the judgment of November 7, 1923, we find that interest is allowed from October 10, 1923, the date of this court's former judgment; whereas, interest should be allowed from the 12th day of November, 1921, the date of the trial court's judgment. This error we think should also be corrected.

It is therefore ordered that the mandate heretofore issued in this cause be recalled; that the judgment of this court of November 7, 1923, be corrected so as to read hereafter as follows: That the judgment of the trial court is reversed and the cause remanded to that court, with instructions to try the issue of the ownership of the cattle at the date this suit was filed, and to determine no other issue of fact; and, should it appear that appellee in some capacity in which he sues was the owner of said cattle on said date, to render judgment in his favor and against appellant for the sum of $1,560, together with interest thereon at the rate of 6 per cent. per annum from the 12th day of November, 1921, the date of the trial court's former judgment herein. If it should appear that appellee in some capacity in which he sues was the owner of an undivided interest in said cattle when this suit was filed, then to render judgment in his favor for his proportionate part of said $1,560, with interest thereon as aforesaid. Should it appear that appellee had no interest in said cattle at the time suit was filed in any capacity in which he sued, then to render judgment in favor of appellant.

Motion to recall mandate granted. Judgment corrected.