
    CASE 57 — ACTION BY JANE CHILDERS AND OTHERS AGAINST MORGAN GAYHEART. —
    March 11, 1910.
    Gayheart v. Childers, &c.
    
    Appeal from Knott Circuit Court.
    D. W. Gardiner, Circuit Judge.
    Judgment for plaintiffs, defendant appeals. — •
    Affirmed.
    1. Appeal and Error — Reversal—Subsequent Proceedings — Suit in Equity and at Law. —Where a judgment at law is reversed on appeal, the trial court may award a new trial and permit the introduction of additional evidence, but, on the reversal of a decree in equity completely determining the rights of the parties, the court is not authorized to grant a new trial, but should render judgment in accordance with the decision of the Court of Appeals.
    2. Appeal and Error — Reversal—Judgment—Validity.—Where, after reversal of a decree in equity, the court erroneously granted a new trial and permitted the introduction of new evidence, and entered a judgment not in conformity with the opinion of the Court of Appeals, such judgment was erroneous and not void, and was therefore subject to vacation only on appeal.
    3. Mandamus — Rendition of Judgment. — While mandamus lies to compel a trial court to act in a matter before it and decide the case according to its judgment, the writ does not lie to compel the court to- act in any particular manner.
    4. Judgment — Rendition— Defects — “Misprision”—Civ. Code Prac. Sec. 517, defines “misprision” of a clerk to consist in the rendition of judgment before the action stands for trial, or to render judgment against an infant, excepting married women or persons of unsound mind, until a defense or report is filed .pursuant to section 36, subsec. 3. Held not to incJude the rendition of a judgment not in compliance with a prior order of the Court of Appeals in an equity suit after a retrial erroneously granted by the court; such error being judicial, and not ministerial.
    
      SMITH & COMBS for appellant.
    J. M. BAKER, for appellees.
   Opinion op the Court by

Chief Justice Nunn

Affirming.

In the year 1884 appellees instituted an action in rlie Knott circuit court against appellant to recover about 36 acres of land, and for a sale of it and a division of the proceeds. The case was tried and judgment rendered in favor of appellees on April 8, 1893. An appeal was prosecuted to this Court, and in the month of October, 1897, this court reversed that judgment, and the case was “remanded with directions to award appellant a new trial, and for further proceedings consistent with this opinion.” 42 S. W. 730, 19 Ky. Law Rep. 1052. The mandate was filed in the lower court, and the case remained on the docket until the month of November, 1902, when it was again tried and another judgment rendered in behalf of appellees. (In the meantime, however, additional proof had been taken). In that judgment the following recital appears: “The court advised is of the opinion that the evidence introduced by plaintiffs since the return of this cause from the Court of Appeals overturns the conclusion that a divisional line was ever made between the lands claimed by plaintiff and that claimed by defendants.” No part of the record of the case referred to is copied into this record, except the two judgments cited and one or two orders of continuance of the case. We have no information as to whether that case was prosecuted in equity or at law, except the statement of appellant’s counsel in their brief and in their notice of their motion in the case at bar. No brief has ever been filed for appellees. There are some statements in the record before ns from -which it maybe reasonably inferred that it was in equity, but there are others indicating that it might have been prosecuted as an ordinary action. For instance, the action was brought for the recovery of land from appellant which it was alleged he was wrongfully in the possession of, and for the value of some timber trees taken therefrom, and the judgment of this court remanding the case for a new trial. These facts would indicate that it was prosecuted at law. The fact that appellee sought a sale of the land and a division of the proceeds in the same action, and the recital indicating that the proof had been taken by deposition, would justify an inference that it was prosecuted in equity. The second judgment, the one rendered in November, 1902, has never been reversed, modified, vacated, or appealed from, so far as this record shows. On July 22, 1908, pursuant to a notice executed upon appellees, appellant entered a motion in the Knott circuit court to set aside the second judgment referred to, upon the ground that it was a misprision of the clerk, and asked the court to enter judgment for him in conformity with the opinion and mandate of the Court of Appeals, which motion was overruled, and it is from that judgment this appeal is prosecuted.

If the action referred to was prosecuted as a common-law action, there can be no question of the right of the lower court in giving appellees a new trial after the -reversal by this court, and they had the right to introduce any and all evidence they desired. But if it was an action in equity, and we will so treat it, the court improperly allowed the introduction of other evidence. It should have entered an -order dismissing appellees’ action, because the opinion by this court clearly and completely settled the rights of the parties. But it seems the lower court disregarded the opinion and granted a new trial, for the reason, we suppose, of the language used by this court in closing the opinion. There is no doubt about the fact that the action of the lower court was erroneous. It should have rendered a judgment in accordance with the principle settled in the opinion; but it did not do so. It rendered a judgment on the new evidence similar to its first judgment. The question to be determined is: Was this judgment void or erroneous? If void, it was not binding upon appellant. If erroneous, the method which would give relief from the effect of it was to appeal to this court. As stated, we have not been aided with a brief by counsel for appellees, and appellant’s counsel do not cite us to any case in which a judgment rendered under the circumstances referred to was void. Every case referred to was where there was an appeal from such a judgment, and with one accord it was decided that the lower court had no right to render a judgment, on the return of the case, contrary to ihe opinion of the Court of Appeals. The lower court had jurisdiction of the subject-matter and the parties and a judgment by it was binding upon the parties until reversed, modified, or vacated, as prescribed by the Code. If there had been an appeal from that judgment, the question would have been different. See the case of Rohmeiser v. Bannon, 22 S. W. 27, 15 Ky. Law Rep. 114, in which a similar question was involved, and the parties sought to mandamus the circuit court to compel it to render and enforce the judgment as directed in the opinion by this court. In that case the court said: “With respect to the mandamus proceeding, it is sufficient to say that this court cannot undertake to dictate or control the manner in which the judgments of the lower court, when affirmed by it, are to be enforced. Upon an absolute refusal to proceed to their enforcement being shown, 'such might be the only alternative left; * * * but nevertheless the court acted and in fact rendered a judgment, and the proper remedy of the party aggrieved is by appeal. ’ ’ The court recognized the rule in that case that this court had no power or authority to compel the lower court to enter a judgment in any particular way or manner; that its powier ceased when by the writ of mandamus it compelled the lower court to act in the matter and decide the ease according to its, the lower court’s judgment in the matter, and in the case referred to the court did act, and it was expressly stated in the opinion that the only remedy of the party aggrieved was by an appeal to this court. The lower court did not fail to act in the case at bar, but acted erroneously and to the injury of appellant, and his remedy was by another appeal from that judgment. lie has slept upon his rights and permitted the two years’ time within which he had a right to appeal pass, and six years after the date of the judgment moves the court to set it aside as void and as a misprision of the clerk. It was not a misprision of the clerk, but a judicial error. A misprision by the clerk is defined by section 517 of the Civil Code to be: “(1) To render judgment before the action stood for trial pursuant to the provisions of this Code. (2) To render judgment against an infant' — excepting married women — or persons of unsound mind until a defense or report is filed pursuant to the provisions of section 36, subsection 3.” This definition cannot be construed to apply in any way to the question at bar. It is not a misprision of the clerk when a court fails to render judgment in conformity with the law. See Rogers v. Bradley, 8 Bush, 163.

For these reasons, the judgment of the lower court is affirmed.  