
    RILEY et al., Appellants, v. SHERWOOD et al.
    Division Two,
    March 5, 1900.
    Appellate Practice: remanding cause with directions: will. Where this court holds, in a contest to set aside a will, that there is no substantial evidence to support the grounds of contest, and that the trial court should have sustained a demurrer to plaintiff’s evidence, and “for these errors the judgment is reversed and the cause is remanded with directions to the circuit court to proceed in accordance with the views” by this court expressed, the intention of this court is, in the absence of new or additional evidence on the part of the plaintiff, that the trial court shall enter up judgment establishing the will.
    Appeal from Audrain Circuit Court. — Hon. E. M. Hughes, Judge.
    Affirmed.
    
      J. D. Johnson for appellants.
    The plaintiffs -were entitled to a re-trial of the case below, and to produce evidence in addition to that offered at the former trial in support of their petition. Crispen v. Hannovan, 86 Mo. 160; Lewis v. Railroad, 59 Mo. 495; Railroad v. Brown, 43 Mo. 294; Carson v. Sugget, 34 Mo. 364; State ex rel. v. St. Louis Circuit Court, 41 Mo. 574; State v. New-kirk, 49 Mo. 472. It follows, therefore, that the lower court erred in rendering the judgment now appealed from. To hold otherwise would be to deny to plaintiffs their right of trial by jury guaranteed them by see. 28, art. 2, of the Constitution of Missouri.
    
      George Robertson also for appellants.
    (1) The authority of the appellate court is confined to an examination of the record and may -upon that examination first, award a new trial; second, reverse or 'affirm the judgment; third, give such judgment as the trial court ought to have given as to the appellate court shall seem agreeable to law. Sec. 2304, R. S. 1889. The Supreme Court did not reverse, affirm or give judgment. When a new trial is given that necessarily reverses the judgment and the usual action of the court is to “reverse and remand.” The language used in this case we construed to mean the awarding of a new trial in the circuit court. (2) When the judgment is reversed and remanded the court below must proceed to re-try the case in accordance with the law as expressed in the opinion of the appellate court. State ex .rel. v. St. Louis Cir. Ct/, 41 Mo. 574; State v. Newkirk, 49 Mo.- 472. (3) A'proceeding to contest a will is an action at law and the parties are entitled to a jury. Garland v. Smith, 127 Mo. 567. It' is a question for the jury of will or no will under the direction of the court. Muller v. St. Louis Hos. Ass’n, 5 Mo. App. 396; s. c., 73 Mo. 242. If the court had no power at the first trial to dismiss the jury and estáblish the will then it could not do so after the remanding of the cause, without again giving the parties an opportunity for a jury. The court’s action in proceeding to establish the will without a jury is a denial of plaintiffs’ -right of trial by jury. Sec. 8888, R. S. 1889, art. 2, sec. 28, Constitution.
    W. W. Fry and W. M. Williams for respondents.
    (1) The circuit court properly held, that it should look to the entire opinion of the Supreme Court, and not merely to the mandatory words with which it concluded, in determining how to proceed under the mandate. Gamble v. Gibson, 10 Mo. App. 335; West v. Brashear, 14 Pet. 51; Supervisors V. Kenn-ecot, 94 IT. S. 498. (2) This was in substance and effect a direction to the lower court to enter a judgment establishing the will, as this court held should have been done, 'upon the first trial in the circuit court. The practice of this court, in will contests,- where the formal execution has been proved, and the contestants have submitted no substantial evidence of incapacity on the part of, or undue influence over the testator, has been to remand the case with directions to enter a judgment establishing the will. Defoe v. Defoe, 144 Mo. 458; Cash v. Lust, 142 Mo.. 644; McEadin v. Oatron, 138 Mo. 197; Jackson v. EÉardin, 83 Mo. 175. (3) Where-the formal execution of the will is proved, and there is no evidence to overthrow the prima facie case thus made, the court should peremptorily instruct the jury to find in favor of the -will. Jackson v. Hardin, 83 Mo. 175. (4) When it plainly appears from the opinion of the appellate court, that it was not intended to reopen the case for a new trial, it is immaterial what words are used in the mandate. Supervisors v. Kennecot, 94 H. S. 498; Hurck v. Erskine. 50 Mo. 116. (5) The construction placed by the circuit court upon the mandate of this court is -also in accordance with the general practice of 'appellate courts. Defendants should not be unnecessarily annoyed and harassed by numerous trials. Hewitt v. Steele, 136 Mo. 327. "(6) When the case was remanded to the lower court with directions, this was a special power of attorney to the trial court, -and it had no authority to reopen the case, or do anything other than was necessary to carry said, mandate into effect. The trial court entered the only judgment proper to be rendered, under the opinion and mandate of this court, and its action should be affirmed. Choteau v. Allen, 74 Mo. 56; Stump v. Hornback, Í09 Mo. 272; Eeed ,v. McDaniel, 131 Mo. 681.
   ON REHEARING.

BURGESS, J.

In an opinion filed, by us in this case on January 22, 1900, we held that, for failure of appellants to comply with the rules of this court by filing a complete abstract of the record, the appeal being by what is called the “short form,” under the provisions of section 2253, Revised Statutes 1889, the judgment should be affirmed, which was accordingly done. Plaintiffs now present a motion for rehearing on that ruling, and upon reconsideration we are satisfied that we erred in affirming the judgment upon the ground stated in the opinion, and that the only course open to us in such circumstance was to dismiss the appeal ox continue the case. We, therefore, sustain the motion and withdraw that opinion, and as plaintiffs insist that whatever imperfections there were in their abstract were cured by the abstract of defendants, we will dispose of the case upon that theory.

This is a statutory contest of the will of Mrs. E. A. Shootman, deceased, upon the grounds of want of mental capacity to make a will, and undue influence in its execution by some of the beneficiaries named in the will. The case was before this court on a former appeal by defendants, and will be found reported in 144 Mo. 354. It was then held that there was no substantial evidence tending to support either of said grounds, and that the trial court should have sustained a demurrer to plaintiffs’ evidence, and that it committed error in failing to do so.

The court saying, “And for these errors the judgment is reversed and the causé remanded with directions to the circuit court to proceed in accordance with the views herein expressed.”

After the mandate from this court was received by the clerk of the circuit court of the county from which the appeal was taken, and the case again came up to be disposed of, the defendants asked the court to enter up judgment establishing the will in contest to be tbe last will and testament of tbe testatrix, Mrs. E. A. Shootman, deceased, in accordance with tbe opinion and mandate of tbe Supreme Oourt, and over tbe objection and exception of plaintiffs, judgment was rendered in accordance with such request.

Therefore, and in due time, plaintiffs filed their motion to set aside tbe judgment, which being overruled they appeal.

Tbe only question to be determined is in respect to the proper construction to be placed upon tbe last paragraph of tbe opinion of tbe court when tbe case was here before, in which it is said, “Upon tbe evidence we think the circuit court should have sustained a demurrer to tbe evidence, and refused tbe instruction numbered 8 given at tbe instance of defendant,, and for these errors tbe judgment is reversed and tbe cause remanded with directions to the circuit court to proceed in accordance with tbe views herein expressed.” It is clearly expressed in this part of tbe opinion that under tbe evidence adduced plaintiffs bad failed to make a case, or to show such a state of facts as entitled them to tbe opinion of a jury thereon, and, as after tbe case was remanded by this court and again called for trial in the circuit court, they did not claim or pretend that they bad any new or other evidence than that which was introduced upon tbe previous trial, there was but one course for tbe court to pursue and that was to enter up judgment establishing tbe will as it did.

In Atkison v. Dixon, 70 Mo. 381, in tbe concluding part of tbe opinion it is said: “We think tbe defense should have been sustained and a decree entered accordingly. We will, therefore, reverse tbe judgment for tbe plaintiff, and remand the cause, with directions to the circuit court to proceed in accordance with this opinion after Mrs. Dixon shall have been made a party.” Notwithstanding tbe judgment reversing and remanding tbe cause, plaintiff thereafter in vacation of court dismissed bis suit, and in a proceeding by tbe defendant therein by mandamus against the judge of the circuit court of the county in which it had been pending to Compel him to reinstate the case on the docket- of his court, and to proceed therein as previously commanded by this court, it was said: “When the case of Atkison v. Dixon was here on appeal (70 Mo. 381), we regarded "the evidence- as.having amply established the equitable right of Mrs, Dixon to the land; and such right was necessarily contested and drawn in question in that suit of plaintiff: to-eject her husband; and so'we reversed the judgment and ordered one to- be entered in accordance with that opinion; but upon suggestion being made that the wife had never been made a party we so far changed our opinion as to require her first to be made a party before a decree should be entered. This is the effect of the opinion, although the idea intended ,to be conveyed thereby is somewhat lacking in clearness. If the plaintiff had desired the privilege of reopening the controversy; if he had now an independent right to assert against Mrs. Dixon, rights never before litigated, he should by timely -application have requested a modification of our opinion -and mandate as to have secured the desired privilege.” [State ex rel. v. Givan, 75 Mo. loc. cit. 517.] The peremptory writ Was awarded.

So in the case at bar when it was here before we considered the evidence as having .amply established the issues involved in favor of the defendants, and reversed the judgment, and remanded the cause to be proceeded with in accordance with the views expressed in the opinion.

While the idea intended to be conveyed by the language used in reversing the judgment and remanding the cause with directions to the circuit court to proceed in accordance with the .views expressed in the opinion, is somewhat lacking in clearness; yet when taken in'connection with other words in the same sentence, to-wit, “we think the circuit court should have sustained a demurrer -to the evidence,” there is no escape from, the conclusion that the. intention of this- court in reversing the judgment and remanding the cause to be proceeded with according to the opinion, in the absence of new or additional evidence on the part of plaintiffs, was, for the court to enter up judgment establishing the will. The court could not have proceeded in accordance with the opinion in any other way, the language used is incapable of any other fair, or reasonable construction. The judgment is therefore affirmed.

Gantt, P. J., and Sherwood., J., concur.  