Opinion
No. 5-1440
[Rehearing denied May 1, 1967.]
APPEAL ERROR — DETERMINATION DISPOSITION OF CAUSE — REVERSAL REMAND, EFFECT OF. — When Supreme Court reverses and remands a law case for new trial, the case is tried de novo.
Supplemental opinion delivered May 1, 1967; rehearing denied. [Original opinion delivered March 13, 1967; page 133.]
Appeal from Union Circuit Court, Second Division, Melvin Mayfield, Judge; reversed.
Ben D. Lindsey and Spencer Spencer; By: Don Gillaspie, for appellant.
Robert C. Compton and Austin McCaskill, for appellee.
The original opinion contains this language: "Under the holding in Terry Dairy, and reiterated in Cox, this case should be reversed, with directions to the trial court to ascertain the damages." This phraseology could well be interpreted to mean that on retrial the only question to be submitted to the jury is damages. This interpretation does not comport with our case law. We have a long line of cases which hold that on remand for trial of a law case it is tried de novo.
In the early case of Harrison v. Trader and wife 29 Ark. 85 (1874), this court said, quoting with approval from an Alabama case:
"When a judgment is reversed, the rights of the parties are immediately restored to the same condition in which they were before its rendition; and the judgment is said to be mere waste paper."
This holding was approved in Holt v. Gregory, et al, 222 Ark. 610, 260 S.W.2d 459 (1953). Also, see Manzo v. Boulet, 220 Ark. 106, 246 S.W.2d 126 (1952); Martin v. Street Improvement District No. 349, 180 Ark. 298, 21 S.W.2d 430 (1929); and Westinghouse Credit Corp. v. First National Bank of Green Forest, et al, 241 Ark. 287, 407 S.W.2d 388 (1966).
Rehearing denied.