25-1926. Appeal; reversal of judgment; mandate.
When a judgment or final order is reversed either in whole or in part in the Court of Appeals or Supreme Court, the appellate court shall proceed to render such judgment as the court below should have rendered or remand the cause to the court below for such judgment. The appellate court shall not issue execution in causes that are removed to it on error on which it pronounced judgment but shall send a special mandate to the court below, as the case may require, to award execution thereupon. The court to which such special mandate is sent shall proceed in such case in the same manner as if such judgment or final order had been rendered therein, and on motion and good cause shown, it may suspend any execution made returnable before it by order of the appellate court in the same manner as if such execution had been issued from its own court, but such power shall not extend further than to stay proceedings until the matter can be further heard by the appellate court.
Source
Annotations
1. Affirmance
2. Reversal
3. Remanded with directions
4. Miscellaneous
1. Affirmance
When evidence is substantially same as on first appeal questions held foreclosed by former decision. Hruby v. Sovereign Camp, W. O. W., 83 Neb. 800, 120 N.W. 427 (1909).
Judgment will not be reversed for mere technical error not prejudicial to appellant. Kimmerly v. McMichael, 83 Neb. 789, 120 N.W. 487 (1909).
On affirmance clerk may issue execution. Porter v. Sherman County Banking Co., 40 Neb. 274, 58 N.W. 721 (1894); State ex rel. Noble v. Sheldon, 26 Neb. 151, 42 N.W. 335 (1889).
2. Reversal
The rule, that a verdict will not be disturbed where there is some evidence tending to support it, does not apply where the verdict is opposed to the undisputed physical facts of the case. Parish v. County Fire Ins. Co. of Philadelphia, 134 Neb. 563, 279 N.W. 170 (1938).
In election contest where contestant failed to prove illegal acts alleged, judgment will be reversed and suit dismissed. Mehrens v. Election Canvassing Board of Douglas County, 134 Neb. 151, 278 N.W. 252 (1938).
In case where trial court sought to correct a supposed error in failing to sustain a motion for directed verdict by vacating the verdict returned and then dismissing the action, Supreme Court will, upon reversing the judgment of dismissal, if no other error is presented by the record, proceed to render such judgment as the court below should have rendered, or remand the cause to lower court for that purpose. LeBarron v. City of Harvard, 129 Neb. 460, 262 N.W. 26 (1935).
It is optional with Supreme Court to render such judgment as court below should have rendered or to remand cause to the district court for such judgment. Harvey v. Godding, 77 Neb. 289, 109 N.W. 220 (1906).
3. Remanded with directions
When the Supreme Court vacates or sets aside a general verdict it should either grant a new trial or remand the cause to the trial court for such judgment. In re George's Estate, 144 Neb. 915, 18 N.W.2d 68 (1945).
Where trial court erroneously vacated verdict and judgment and dismissed action, Supreme Court, on reversing judgment of dismissal, if no other error is presented, will remand cause with directions that verdict and judgment be reinstated. Netusil v. Novak, 120 Neb. 751, 235 N.W. 335 (1931).
In reversing a law action, Supreme Court has jurisdiction to direct district court to render judgment in favor of successful party. Armsby Co. v. Raymond Bros.-Clarke Co., 90 Neb. 773, 134 N.W. 920 (1912).
New parties cannot be brought in after case is remanded with specific directions. Gund v. Ballard, 80 Neb. 385, 114 N.W. 420 (1907).
When case is remanded without directions, trial court should retrace steps to place where first material error occurred. Colby v. Foxworthy, 78 Neb. 288, 110 N.W. 857 (1907).
Where case is remanded generally, district court has discretion as to further proceedings. Gadsden v. Thrush, 72 Neb. 1, 99 N.W. 835 (1904).
4. Miscellaneous
Supreme Court can make any order that district court is authorized to make. Fick v. Herman, 161 Neb. 110, 72 N.W.2d 598 (1955).
Supreme Court may remove guardian appointed by trial court, and appoint another having no interest in ward's estate. Keiser v. Keiser, 113 Neb. 645, 204 N.W. 394 (1925).
Supreme Court has jurisdiction to entertain plea in abatement based on matters happening after appeal perfected. Irwin v. Jetter Brewing Co., 101 Neb. 409, 163 N.W. 470 (1917).
Supreme Court may order remittitur, and reverse if not filed, where judgment below is clearly excessive. Nutter v. Standard Land Co., 100 Neb. 548, 160 N.W. 948 (1916).
Judgment in obedience to mandate is final and will not be superseded or reversed on appeal. Kerr v. McCreary, 86 Neb. 786, 126 N.W. 299 (1910).
Supreme Court cannot enlarge scope of trial court's findings. Sowerwine v. Central Irr. Dist., 85 Neb. 687, 124 N.W. 118 (1909).
A judgment is not considered an entirety unless the interests of the judgment debtors are inseparable. Sturgis, Cornish & Burn Co. v. Miller, 79 Neb. 404, 112 N.W. 595 (1907).
Applicability to appeal cases is questioned. Hoagland v. Stewart, 71 Neb. 102, 98 N.W. 428 (1904), rehearing denied 71 Neb. 106, 100 N.W. 133 (1904).
District court must obey mandate; cannot permit intervention. State ex rel. Bradbury v. Thompson, 69 Neb. 157, 95 N.W. 47 (1903).
Obedience to mandate may be enforced by mandamus. State ex rel. Horton v. Dickinson, 63 Neb. 869, 89 N.W. 431 (1902).
Court may recall mandate during term before it is acted upon. Horton v. State ex rel. Hayden, 63 Neb. 34, 88 N.W. 146 (1901).
Mistake in entry of judgment may be corrected without remanding cause for new trial. Youngson v. Pollock, 25 Neb. 431, 41 N.W. 279 (1889).