#### Collier *v.*Ervin.

New TRIAL— *came remanded for further proceedings.*At the August term, 1875, this court reversed the judgment and remanded the cause for further proceedings. It appeared from the opinion that the court below tried two causes of action upon a wrong theory, and that certain errors must be corrected by the court below by determining the amounts due upon three mortgages and tlieir priorities. Held, that the errors arose upon the trial of the cause," and that the effect of the order of this court was to grant a new trial.

Appeal hot considered. Both parties appealed. C. asked for a new trial, and E. for a modification of the judgment. A new trial was granted on the hearing of O.’s appeal. *Held,*that ]E.’s appeal would not be considered because a modification of the judgment would be useless.

*Appeal'from Hirst District, Jefferson Country.*

BlaKE, J., rendered a judgment upon the facts appearing in a prior judgment in this action. Both parties appealed and the cases were argued together.

*557Shober *&*Lowry and Sanders & Cullen, for Collier.

ChüMaséro *&*Chadwick: and M. C. Page, for Ervin.

Tbe following opinion was delivered on tbe appeal of Collier.

ENowles, J.

Tbis case was tried in February, 1874, and beard on appeal in tbis court at tbe August term, 1875. Tbe judgment of the court below was reversed and tbe cause remanded. Tbe cause came on for bearing in the court below at tbe October term, 1876, and tbe court held that, under tbe opinion of this court, a new trial was not granted and that a decree could be entered upon tbe facts found and which appeared of record in tbe first trial. Tbe order of tbis court was as follows :■ *“*Tbe decree is reversed and tbe cause remanded for further proceedings.'”

*We*held in *Woolman*v. *Garringer, ante,*405, that an order like tbis did not of necessity amount to a direction that there should be a new trial, and that tbe opinion of tbis court could be referred to in determining what was tbe intention in making tbe order. It was also held, that, if tbe error for which the case was reversed occurred on tbe trial, tbis of necessity would involve a new trial; but if the error occurred after tbe trial, and tbe court below could take up the case at tbe point where tbe error occurred, it should do so, and tbe order for reversal would not call for a new trial. Did tbe errors for which tbe case was reversed occur at tbe trial, or subsequent to it ? If subsequent to tbe trial, was tbe record in such a condition that tbe court below could take up tbe case at tbe point where tbe error occurred ?

In determining for what errors'the decree was reversed, let us consult tbe opinion rendered at tbe time of tbe reversal. It held that tbe court below bad embraced too much in its decree, — tbe amount secured by the Nader mortgage; when it found that 'the mortgage was insufficient in law, and that there were not facts sufficient set forth in tbe cause of action, that seeks to foreclose tbe Blacker mortgage, to assess tbe amount due on tbe Nader mortgage as an amount due on tbe Blacker mortgage. Tbe extent to which tbe amount due on tbe Nader mortgage was included in tbe decree was erroneous. When did tbis error occur ? It must have occurred on tbe trial. It was an error in finding an *558amount for which a judgment should be rendered. How could this error be corrected without a new trial and assessing again the amount due on the Blacker mortgage ? If a jury-had wrongfully included this amount in their verdict, I am sure the error could not be corrected without a new trial, as the amounts due respectively on the Rader, Blacker and Collier mortgages nowhere appear in the findings. The amount is specified m *sólido.*There should have been a new trial to remedy this error.

The second error might have been corrected in some particulars without a new trial, namely, that portion holding it was error to include in the decree of sale certain property, not in the Collier mortgage, and direct it to be sold in such a manner that the proceeds of the sale would inure, to the satisfaction of the Collier mortgageand that property not included in the Collier mortgage could not be sold to satisfy it. How is a decree to be drawn to meet the case without ascertaining how much was due respectively on the Collier and Blacker mortgages ? The evidence must be again referred to.

It was also held error to fail to determine which of the mortgages was the prior incumbrance. No fact upon this point was found. How was it to be reached ? The mortgages, their dates and dates of record must be inspected. Evidence must again be inspected and this would be a new trial. If this fact might be ascertained by an examination of the pleadings, it was not so found. This would be an error occurring at the trial and not subsequent to it.

It was suggested in the opinion that the case had been tried upon a wrong theory, namely : That the first and second causes of action were based upon promissory notes, when in fact they were based upon the amounts which had been paid for Ervin *eb al.*on the notes. How was this error to be corrected without a new trial ? Considering the order rendered in this case in the light of the opinion upon which it is based, its effect was to grant a new trial and it was error in the court below to refuse one.

In order to correct a misapprehension of the attorneys for both parties, I will say that this court did not affirm the determination of the court below that the Rader mortgage was insufficient in law to entitle Collier to foreclose it. This court was never called *559upon to determine this question. It took tbe record as it appeared. In tbe record was found a determination that tbe Nader mortgage was insufficient in law, wbicb was not excepted to by either party.This court treated tbe ease from that standpoint and did not feel that it could recede from it.

Tbe judgment is reversed and tbe cause remanded for a new trial.

*New trial gra/nted.*

Tbe following opinion was delivered on tbe appeal of Ervin.

KNOwles, J. Tbe foregoing decision makes it unnecessary that we should consider tbe points presented on this appeal. Tbe rebef asked by tbe appellant is a modification of tbe judgment in appropriating tbe proceeds of some of tbe property in controversy. Tbe judgment has been reversed and tbe cause remanded for a new trial, and any modification of tbe same would be useless.