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: 32
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32 WELLS V. LITTLEFIELD. [Austin Term,
Opinion of the court.
posing of the case are those which the new trial may be given to
ascertain. At least that it would not be out of the power of the
court to remand the cause for a definite finding of these facts
It has been the practice of this court from its earliest days down
to the present time to reverse and remand causes to the district
court, and to enter up judgments in accordance with their decisions.
Chambers v. Hodges, 3 Tex., 517; Peters v. Caton, 6 Tex., 359; Wood
v. Wheeler, 7 Tex., 13; S.'C., 9 Tex., 127; Anderson v. Powers, 59
Tex., 213; Cowan v. Nixon, 28 Tex., 240.
This having been the uniform practical construction given to the
act in force before the Revised Statutes were adopted, and the latter
having adopted substantially the language of that act, it must have
been the intention of the legislature that the same interpretation
should be applied to the new statutes. Hillebrand v. McMahan, 59
Tex., 450; State v. Smith, 55 Tex., 447.
We think this court had authority to remand the cause to be disposed
of as required in the opinion of the court.
But it is further contended that in giving its directions to the
lower court as to the further proceedings to be had in the suit, this
court allowed the former a judicial discretion which could not be
controlled by a mandamus.
To ascertain what judgment was to be rendered, we must look as
well to the opinion of the court accompanying the mandate as to
the mandate itself. West v. Brashear, 14 Pet., 51.
The opinion directs the court to render judgment in favor of
Wells. That part of it is peremptory, and certainly leaves no discretion
with the district court as to the party in whose favor the
judgment must be entered up. If upon a new trial it should appear,
by newly-discovered evidence or otherwise, that such a case had
been made out as entitled Littlefield to recover, and the court should
accordingly give judgment against Wells, the order of the court
would be disobeyed. The very terms of the opinion preclude all
possibility of a new trial upon any issues already made, or facts
transpiring before the time of the former trial.
As to the nature of the judgment to be rendered, it is such as the
district court should have rendered had its finding been in favor of
Wells instead of Littlefield on the former trial of the case.
We will treat the question as if this part of the mandate left
something within the judicial discretion of the court. How far did
this discretion extend? Only so far as to determine from the records
of the court as they existed at the time of trial the precise
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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/m1/54/: accessed October 22, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .