Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Austin term, 1884, and the Tyler term, 1884. Volume 62. Page: 31
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1884.] WELLS V. LITTLEFIELD. 31
Opinion of the court.
particular judgment is entered up, and the mandate of the court
obeyed. For the purpose of enforcing all such orders coming within
the appellate jurisdiction of the court it may resort to the writ of
nmandamus, or any other appropriate writ known to our system of
But it is urged that the writ cannot be used in this instance because
the supreme court cannot reverse and remand a cause except
for a new trial upon all the issues in the case, both those which were
and those which were not determined by the court in passing upon
This view seems to be based upon the language of our Revised
Statutes, art. 1048, which provides that " where it is necessary that
some matter of fact be ascertained, or the damages to be assessed
or the matter to be decreed is uncertain, in either of which cases the
cause shall be remanded for a new trial in the court below."
This article is the same as that contained in the act in force at
the time the Revised Statutes were adopted, with the exception that
the words " new trial in the court below " are used in the Revised
Statutes, instead of the words "definite decision " which occur in
the former act.
There is but little material variance between these two expressions,
and in the case of Chambers v. Hodges, 3 Tex., 517, they
were treated by Chief Justice Hemphill as having a similar meaning.
We do not consider that by the use of the words " new trial" it
was meant that, no matter what might be the decision of this court,
or how far it had settled the rights of the parties, in every case
where a cause was remanded it should be re-opened upon all the
issues which could possibly arise in it, both those which were determined
and those which were not by the decision of the supreme
court. Examples readily occur in which this court may close investigation
as to points passed upon in its opinion, but permit it as to
others which it is necessary to ascertain, before a proper judgment
disposing of the rights of the parties can be pronounced. For instance,
in a suit for land where judgment has gone for a defendant
who had pleaded improvements made in good faith. If that judgment
is reversed, the court might well render its judgment decreeing
the land to the plaintiff, but remanding the cause for the purpose
of ascertaining the value which should be allowed the defendant
for his improvements. For other instances, see Wood v. Wheeler,
7 Tex., 25, and Anderson v. Powers, 59 Tex., 213.
The language of the statute itself seems to imply that the very
facts which are wanting so as to prevent this court from fully dis
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Austin term, 1884, and the Tyler term, 1884. Volume 62., book, 1885; Austin, Texas. (texashistory.unt.edu/ark:/67531/metapth28512/m1/53/: accessed April 24, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .