JOSEPH J. WRIGHT, E. D. WRIGHT, and A. J. E. JOHNSON, Appellants, v. ALICE L. WRIGHT, Widow of the late Z. F. WRIGHT, Appellee.

APPEAL FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT, MONTSERRADO COUNTY.

Decided December 4, 1936.

1. If this Court reverses a judgment, and remands a case with instructions, it is the duty of the trial judge who carries out said instructions to give such judgment as the evidence, including the additional fact found, will warrant.

2. For should he merely hear the additional evidence, and send up a certified copy thereof for us to decide the issues, we would be compelled to assume the role of a trial judge in a case in which we had no original jurisdiction, which would be unconstitutional.

3. If, however, the judgment had not been reversed, but the case suspended pending return to an interlocutory order, we would not have lost the appellate jurisdiction which originally had been obtained, under which we could proceed to affirm, reverse or modify the judgment originally given.

This case was earlier decided by the Circuit Court of the First Judicial Circuit and appealed to this Court, which reversed and remanded with instructions. The Circuit Court thereupon took additional evidence and transmitted “supplementary records” to this Court. Case again remanded with instructions.

S. David Coleman for appellants. Anthony Barclay for appellee.

MR. CHIEF JUSTICE GRIMES delivered the opinion of the Court.

The above entitled case was one of those reviewed at our last April term. On the 15th day of May, 1936, during said term, the judgment of the court below was reversed, and the case remanded to the trial court with instructions :

“(1) To ascertain the date of the alleged marriage of Z. F. Wright and Alice L. Wright; (2) Which, if any, of the lands of the inheritance the said Z. F. Wright is alleged to have sold, were sold before the coverture, and which were sold during the coverture; (3) Whether or not the widow expressly relinquished her dower in and to the lands of the estate, if any, sold during her marriage, and, if so, what tracts of lands and their approximate value ; (4) Whether or not those having the right to the reversion had consented to compromise with the widow by giving her two tracts of land in fee-simple and had evidenced said intent by deed. And upon ascertaining said facts to have the widow’s dower properly assigned. . . .”

The mandate, to which a copy of the aforementioned judgment and a copy of the opinion on which it was based, were attached was served upon His Honor E. A. Monger, Circuit Judge presiding by assignment in the First Judicial Circuit. Upon receipt of said mandate with copies of the opinion and judgment as aforesaid attached, His Honor the Judge aforesaid caused the parties to appear, heard the additional oral testimony and written evidence that they offered, and, immediately thereafter, ordered the clerk of his court to transmit a copy of said testimony to us as “supplementary records.”

It is unfortunate that the trial judge seemed not to have realized that he was acting contrary to law. In the first place, the judgment appealed from had been reversed by this Court. The Court, in its opinion, had explained that for lack of certain testimony the Circuit Judge who first heard the case had not been in a position to properly settle the issues submitted, and it was in order to obtain the supplementary evidence indicated in the opinion that the case had been remanded. It should have been obvious to the trial judge that after hearing the evidence, he should have given a judgment, settling the issue in accordance with what he considered just, in view of the additional evidence obtained. Then, had either of the parties been dissatisfied, such dissatisfied party would have been in a position to regularly appeal to this Court for a review of the decision.

As the case now stands the judgment given by His Honor Judge Brownell, on the 10th day of September, 1935, has been reversed; no other judgment has been given, and were we to assume jurisdiction now we would be compelled to give an original judgment instead of reviewing an original judgment, which constitutionally we cannot do.

A very important distinction must be made between this case and that of Young, Armlahbah and Mesarmah v. Embree, unreported officially, 3 Lib. New Ann. Ser. 26 (1935), and Young, Armlahbah and Mesarmah v. Embree, [1936] LRSC 21; 5 L.L.R. 242, 3 Lib. New Ann. Ser. 194 (1936), in which Mr. Justice Russell dissented upon the ground therein alleged that in that case, we had assumed original jurisdiction. For, first of all, we did not reverse the judgment in that case, but merely issued an interlocutory order, requiring the trial court to resume jurisdiction pro tanto, do certain things therein enumerated, and report to us. “We, therefore, retained the appellate jurisdiction that we had already acquired, by virtue of which we had the power to affirm, reverse or modify the judgment originally given. See [1936] LRSC 21; 5 L.L.R. 242, 246 Lib. New Ann. Ser. 194, 199. Up to the time the report was made as a result of said interlocutory order, we had no means of knowing whether the trespass alleged had been committed, if at all, upon the lands of plaintiff in violation of the writ of injunction out of which the contempt proceedings grew or on lands of defendants. As soon as that one doubtful point had been clarified by the surveyor, we were then in a position to consider the judgment before us, and decide whether, in our opinion, it was in accordance with correct legal principles or not. Eventually, on the 15th day of May last, we reversed the judgment. And the four of us held and, in spite of the dissent of our colleague, Mr. Justice Russell, still maintain, that in following such procedure we never, at any time, exercised original jurisdiction in that case.

On the other hand, in the case now before us there is now no judgment; that originally given has been, as aforesaid, reversed ; nor, as a consequence, have we before us the decision of any Circuit Judge to review, especially since certain evidence was not elicited, which, during the first trial, was shown to have been a vital error. We are now of the opinion, therefore, that His Honor Judge Monger should be ordered to resume jurisdiction, and decide this cause; and after he shall have given a decision, should either party be dissatisfied, such party may be allowed to bring the case up hither for our review. And by an understanding between us all, it has been arranged that His Honor the Chief Justice will, as soon as possible, assign His Honor Judge Monger to the duties of the First Judicial Circuit, and by general and special assignments keep him there until this case shall have been by him determined ; and it is hereby so ordered.

Remanded.

MR. JUSTICE DIXON having been of counsel before his elevation to the Bench, and MR. JUSTICE RUSSELL having given certain rulings while a Circuit Judge, announced their disqualification, and hence took no part in the consideration or decision of this case.