#### Kuenzli, Administrator, vs. Burnham, imp., Respondent: Chase and another, imp., Appellants.

*February 24*

March *14, 1905.*

*Appeal: Reversal: Mandate directing judgment: Power of trial court.*

Under see. 3071, Stats. 1898, where the supreme court reversed the judgment of the trial court and remanded the cause “with directions to enter judgment dismissing the complaint,” the trial court had no power to enter any different judgment in the action, even though the parties made no objection or voluntarily submitted, as prescribed in sec. 2788, a matter in controversy arising out of an order relative to the rents and profits of the land in suit, made prior to the judgment appealed from.

Appeal from a judgment of the circuit court for Milwaukee county: Warren D. Tarrant, Circuit Judge.

Reversed.

*481This case was here upon a former appeal. 119 Wis. 509, 516, 97 N. W. 176. That appeal was from a judgment setting aside a deed of conveyance from the original plaintiff, Clinton Burnham (since deceased), to his wife, the defendant *Anna Burnham,*and canceling a mortgage on the property described in the deed, executed .February 6, 1901, and the mortgage executed May 21, 1901. That judgment was reversed by this court, and the cause was remanded with directions to enter judgment dismissing the complaint as of October 21, 1903, when the same was submitted, and which was before the death of Clinton Burnham. The action was commenced May 27, 1901. It now appeal’s that pursuant to an order of the trial court made July 29, 1901, the husband was allowed to collect the rents and profits of the lands in controversy upon giving a bond in the sum of $20,000, executed by himself as principal, and *Clifford Chase*and the *Pacific Surety Company*as sureties, conditioned to account for such rents and profits and pay over a certain amount thereof to the wife, *Anna,*as therein prescribed. After the *remittitur*from this court was filed in the trial court, and on April 12, 1904, an order was made therein referring the cause to a circuit court commissioner to hear, try, and determine the amount of such rents and profits remaining due and unpaid to the widow, *Anna,*on the bond. He found the amount to be $945.82, which the court, on motion, reduced to $922.12, September 13, 1904. Erom the judgment entered thereon for that amount as damages and $108.25 costs in favor of the widow, *Anna,*and against the plaintiff, as administrator of the estate of Clinton Burnham, deceased, and *Clifford Chase*and the Pa*cific Surety Company,*as such sureties, the sureties appeal.

Eor the appellants there was a brief by *Quarles^ Spence <& Quarles,*attorneys, and *William C. Quarles,*of counsel, and oral argument by *William C. Quarles.*

Bor the respondent there was a brief by *Turner, Pease & Turner,*and oral argument by *W. J. Turner.*

*482Cassoday, C. J.

Tbe liability of Clinton Burnham to bis wife, Anna, for rents and profits was not in issue nor adjudicated on *the*former appeal; much less was tbe liability of tbe sureties on tbe bond mentioned. After providing in a general way for tbe mandate from this court, tbe statute declares that:

> “In all cases tbe supreme court shall remit its judgment or decision to tbe court from which tbe appeal or writ of error was taken, *to be enforced accordingly;*and if from a judgment, *final judgment*shall thereupon be entered in tbe court below, *in accordance therewith,*except where otherwise ordered.” Sec. 3071, Stats. 1898.

In strict accordance with that statute, this court, on tbe former appeal, reversed tbe judgment of tbe trial court, and remanded tbe cause “with directions to enter judgment dismissing tbe complaint.” *Burnham v.*Burnham, 119 Wis. 509, 516, 97 N. W. 176, 179. Such being the mandate, it became tbe duty of tbe trial court, in obedience thereto and to tbe statute quoted, to enter in that court “final judgment” “in accordance” with such mandate. In fact it bad no power or authority to enter any different judgment in this action than thus prescribed. This has, in effect, been repeatedly declared by this court. *Patten P. Co. v. Green Bay & M. C. Co.*93 Wis. 283, 291, 66 N. W. 601; *Crowns v. Forest L. Co.*100 Wis. 554, 76 N. W. 613; *Ean v. C., M. & St. P. R. Co.*101 Wis. 170, 76 N. W. 329; *Bloor v.*Smith, 119 Wis. 163, 96 N. W. 544.

Counsel seek to justify tbe judgment entered on tbe ground that no objection was taken to tbe practice pursued nor tbe proceedings before tbe referee. It may be that tbe sureties, as well as tbe estate of tbe deceased, were willing to investigate as to tbe true amount due to *Arma*on tbe bond, with a view to settlement without further litigation. Whatever may have been tbe motive, it is quite evident that there was no voluntary submission of tbe controversy, as prescribed by tbe statute. Sec. 2788, Stats. 1898. Even bad there been such *483submission it could not have authorized judgment in this action contrary to the mandate of this court.

*By the Court.*— The judgment of the circuit court is reversed, and the cause is remanded with direction to obey the mandate of this court on the former appeal, and “enter judgment dismissing the complaint.”