(Superior Court of Chicago.)

#### James Pratt vs. Russell Grimes.

(October, 1869.)

Appeal and Error — Power of Court Where Case Reversed and Remanded Without Directions. Where a decree in equity in favor of the defendant has been reversed and the case remanded by the supreme court without directions the lower court has complete power over the,disposition of the case.

*183Motion for leave to introduce further evidence in a case that had been reversed by the supreme court.

Jameson, J.:—

This is a motion for leave to introduce further evidence in a case that- has come from the supreme court. That court reversed the decree, and remanded the case without any directions, simply saying: “We reverse the decree on the ground that there is no sufficient proof of settlement, and remand the cause.” It is contended by the party prevailing that all we have to do is to enter a decree. On the part of the defendant here, it is contended that this order does not preclude the introduction of further testimony, and a hearing of the case.

On the part of the complainant, a case has been read to the court from 1 Kane, 586, at law, which is supposed to settle the rule as the complainant contends it should be. In that .case, the court of errors of New York reversed a case that had come up from the supreme court, and ordered the court below to enter an order decreeing a hearing of the matter da novo for a new trial by a jury. The order of the court of errors was not obeyed by the court below. A new trial was had, but without the issuing of an order for a venire. The case going again to the court .of errors, it was held that that was error; that the court below should have first entered an order for a venire da novo, and thereupon a new trial would properly have been had. Because there was no such order entered, the case was remanded again. This is a case at law, and even if it was in its circumstances precisely similar to this — that is, had the court of errors merely reversed and remanded the case without direction, I doubt very much if it would have applied to a case in chancery. On the other hand, the defendant has read several cases which I think establish a contrary rule. In the ease of Wescot v. Woodworth, 1 Hopkins, Ch. 576, it was held that where a ease had been taken to the supreme court, and. an order of remanding the case was entered, that it was the duty of the court below to allow evidence anew as .to a party who had *184been made a party to the suit after the evidence as to other defendants had been taken originally. It seems that there were certain defendants; the case had been prepared for trial in the court below as to them, and all the evidence taken, and then another party was made party to the suit. The court went on and entered a decree, -and in the supreme court the case was reversed and remanded. The new party to the case claimed the right to introduce evidence on the hearing, which was overruled, and the case was heard on the evidence originally in the case. The supreme court held that that was error. There are also two cases in 3 Dana (Ky.), 76, 536 (Riley v. Wiley; Broadhus v. Broadhus), to this effect: where a cause has been reversed and remanded without directions, the court below has the same power over it as though it had never been to a higher court, and of course it may either set aside orders entered in the cause that was originally before it, or it may make such decree as seems to be equitable and just. I think that these two cases are pertinent to this, and must govern. In this case it is claimed by the defendant that one of the depositions used on the trial in this court was hot taken to the supreme court. It formed no part of the record, but was lost, and it is claimed had that deposition been on file as a part of the record, the case might have been very different in the supreme court. This presents a strong equitable claim for the allowance of this motion.

The motion is allowed.

NOTE.

Case on former appeal, see Pratt v. Grimes, 48 Ill. 376. — Ed.