
    Henry Oliver v. James F. Lansing.
    Filed June 3, 1897.
    No. 9147.
    1. Review: Reversal: Mandate: Procedure Below: Costs. On a former appeal of this case this court determined all the issues involved, except the value of a certain block of real estate, reversed the decree appealed from and remanded the case with instructions to the district court to ascertain the value of said block and enter a decree in conformity with the opinion, taxing all the costs to the appellee. Held, (1) That the case was not remanded generally for a new trial of all the issues made by the pleadings therein; (2) that the district court did not err in refusing to permit witnesses to be called and examined as to the value of said block, but might ascertain such value from the evidence embraced in the bill of exceptions and made a part of the record of the case on its first trial; (3) that the parties were not entitled to have a jury determine the value of said block; (4) that the order made by the district court taxing all the costs to the appellee could not be reviewed by him in this action on a cross-petition in error as this order was made in obedience to the mandate of this court and the appellee’s remedy was to apply to this court by motion on rehearing for a modification of that order.
    2. Bias of Judge: Evidence. Evidence examined, and held not to sustain the contention that the district judge who tried the case was biased or prejudiced against the plaintiff in error or his counsel.
    Error from the district court of Lancaster county. Tried below before Hall, J.
    
      Reversed.
    
    
      Webster, Rose & Fisherdick and E. E. Brown, for plaintiff in error.
    
      Burr & Burr, contra.
    
   Ragan, C.

June 26, 1893, the district court of Lancaster county entered a decree in an action pending therein between Henry Oliver and James F. Lansing. From this decree Oliver appealed to this court, which reversed the decreí1 appealed from and remanded the case to the district court with instructions to enter a decree in conformity with the opinion. (See Oliver v. Lansing, 48 Neb., 338.) All points presented by the appeal were decided by this court except the value of a block in East Lincoln. As to that it was said in the opinion: “We conclude that there has been no satisfactory proof made that the value of block 9, in East Lincoln, at the time $16,000 was charged for it, was worth that sum. As there was no finding on this question of value this must be determined upon another trial in the district court.” The district court, after receiving the mandate of this court, entered a judgment in the action, to reverse which Oliver now prosecutes here a petition in error.

When the case came on for hearing the second time before the district court, Oliver called witnesses and offered to prove by them the value of said block 9. The district court refused to permit these witnesses to testify and determined the value of said block from the evidence in the record of the case then before the court in a bill of exceptions duly settled and allowed at the former hearing. This action of the court is the first error assigned here. In this the district court was correct. . This case was not remanded to the district court for a new trial generally, but every issue in the case involved in the appeal was settled by the opinion except the value of said block 9. As to the value of this block some fifty-seven witnesses had testified on the former hearing and it was entirely proper for the district court, when the case reached it under the mandate, to determine the value of said block from the evidence already introduced in the case. We are not saying that the district court in the case had no right to take further testimony as to the value of this block; but what we do decide is that the mandate of this court commanded the district court to ascertain the value of that particular block, and the court was invested with discretion to determine it from the evidence already in the record before it or to take additional evidence.

The ease was first tried and decree rendered by Judge Hall, one of the judges of the judicial district in which, is situate said Lancaster county. When the case came on for hearing the second time before said judge, Oliver objected to Judge Hall’s trying the case, on the ground of his alleged bias and prejudice, and moved to have the case heard before some other judge of the district. The overruling of this objection and motion and the determination of the case by Judge Hall is the second assignment of error argued here. The substance of the facts alleged by the plaintiff in error which he claims show that the learned judge was biased and prejudiced against him is, that sometime after the rendition of the former decree the learned judge, in a conversation with Oliver’s counsel, expressed the opinion that the value of said block 9 was about $13,200; that, of the various witnesses who had testified as to its value, he thought the value placed thereon by a witness named Tuttle was about the correct one. At this time the case was pending-on appeal in this court. It seems, also, that Mr. Oliver, after the rendition of the other decree, spoke to his honor, Judge Hall, about the value of said block 9; and the judge said to him substantially what he had said to his counsel. It appears, also, that after the reversal of the case in this court, Judge Hall criticised the counsel for Oliver because the judge seemed to be of opinion that some point was presented to the supreme court by counsel for the appellant that was not presented to the trial court; that the case was tried in the supreme court upon a theory different from the theory upon which the case was presented in the court below. But there is in all this not a symptom of bias or prejudice existing in the mind of the learned judge who tried this case, either against Oliver or his counsel; nor was there anything improper in Judge Hall’s expressing an opinion as to the value of said block 9 at the time and place and under the circumstances he did. If a litigant does not wish to know the opinion of a judge as to some point in a case he has been trying, he will be pretty sure not to find out, if he does not ask the judge; and if he can satisfy himself of the propriety of questioning the judge about bis opinion, be ought not to complain because be receives an answer.

When tbe case came on for hearing after tbe reception of the mandate, Oliver demanded that tbe district court submit tbe question of tbe value of said block 9 to a jury. Tbe denial of this application by tbe district court is another error assigned. Tbe court did not err in this respect. It was an action in equity and tbe district court was not bound to permit any question of fact involved in it to be tried by a jury. It might have submitted, if be thought best, any question of fact involved in tbe case to tbe determination of a jury; but bad be done so, be would not have been bound by tbe finding made by such -jury.

Tbe district court, on its final bearing of tbe case, February 23, 1897, determined tbe value of said block 9 to be |13,200. This finding of tbe district court is abundantly sustained by tbe evidence; but tbe district court, instead of entering a new decree in tbe case, modified, its decree of June 26, 1893, so as to reduce its judgment in favor of Lansing and against Oliver. This action of tbe district court was erroneous. Its decree of June 26,1893, was not in existence when it attempted to modify it in February, 1897. This court bad annulled that decree.

When this case was remanded to tbe district court after reversing tbe former judgment, it was remanded with directions to tbe district court to tax all costs in tbe case to Lansing. Tbe district court obeyed this mandate, and its action in that respect is complained of here by cross-petition in error filed by tbe defendant in error Lansing. Tbe judgment complained of by Lansing is not tbe judgment of tbe district court, but of this court, and Lansing cannot be beard to complain on error of tbe action of tbe district court because it entered a judgment in conformity with tbe mándate of this court. If Lansing was of opinion that tbe judgment of this court taxing all the costs to him was erroneous, be should have brought the attention of this court to that order by a motion for rehearing. Not having done this, or if he has, the motion for1 rehearing having been overruled, the question is closed. The decree of the district court is reversed and a decree will be entered here in favor of Lansing and against Oliver for the sum of $5,610.36, with interest at seven per cent per annum thereon from June 26, 1893. All costs to be taxed to Lansing.

Decree accordingly.  