Pigford v. Ladner , 142 Miss. 435 ( 1926 )

^* Corpus Juris-Cyc. References: Appeal and Error, 4CJ, p. 1239, n. 96; p. 1240, n. 23; p. 1242, n. 42 New. This is a suit for partition of land, of which Jonathan E. Ladner, deceased, was seized and possessed. The complainants are children of a second marriage of Ladner and the defendant claims by purchase from Ladner's children by his first marriage, and the issue presented by the pleading is the validity vel non of the second marriage. The case was before this court at the March, 1925, term, on appeal from a decree dismissing the complainants' bill rendered on bill, answer, cross-bill, and proof, and the decree was reversed and the cause remanded. Ladner v.Pigford, 103 So. 218, 138 Miss. 461. An examination of the opinion then rendered will disclose that the ground of the reversal was the failure of the defendant and cross-complainant to prove the invalidity of Ladner's second marriage. When the case came on to be again heard in the court below, the complainants requested the court below to render a decree in accordance with the opinion of this court without the hearing of further testimony, which request, over the objection of the defendant and cross-complainant, was granted, and a decree was rendered awarding the partition prayed for in the bill of complaint. The defendant and cross-complainant has appealed to this court.

The decree appealed from recites, in effect, that no amendment had been made to the pleadings after the case was remanded to the court below, and that, consequently, no new issue was presented for decision. All this is true; nevertheless the court below should have overruled the appellee's request for a decree without a retrial of the case, for where a judgment or decree is reversed by the supreme court, and the case is remanded generally, it must be tried de novo, and such judgment or decree should then be rendered as the pleadings and evidence then introduced require.Wailes v. Johnson, 25 Miss. 421; Haines v. Haines, 54 So. 433, 98 Miss. 830; Gilbert v. Glenny (Miss.), 106 So. 517.

Reversed and remanded.