ARE.1 FIDELITY & DEPOSIT CO._ V: FAIRFIELD.; 997 PIDELITY & DEPOSIT 'COMPANi V. FAIRFiELD. Opinion delivered November 30, 1926. APPEAL AND ERROR—FORMER DECISION AS LAN4 or. CASE.—Where, on a ; former appeal in a chancery case, the Supreme Court, affirmed a . decree of the.court below that a sum found due to an_ estate by the administrator should bear interest from the date of the decree, 'instead Of from the date of' the judgment . of the probate co.urt, such ruling beeame final after the lapse'of the' term, and; though erroneous, could not be amended, either in the chancery court or . in the Supreme Court on a second appeal. ; • Appeal from' Mississippi Chancery Court, Chicka-sawba District; J. III. Futrell, Chaneell'or ; reversed. J. T. CoSton, for appellant. Little, Buck & Lasley; for Appellee. SMITH, J. -A suit was brought in the chancery court to surcharge and falsify- the settlement account of W. A. Anthony, as' administrator of the 'estate of D. P. Beard.. The -suit was brought • by Fairfield, the. administrator in succeS ' sion, Anthony having resigned, and the chancery- court , found that credits ..aggregating $8,417.18 had been erroneously allowed Anthony -on. the approval of his settlement by the,probate court. An ap-peal- was prosecuted to this court, and.we held that the chancery court was in error in refusing to allow the credit of $8,417.18, but in all other respects the decree was affirmed. Fidelity & ,Deposit Co. v. Fairfield . , .164 Ark. 498:
998 FIDELITY & DEPOSIT CO. V. FAIREIELD. [169 After the' affirmance of this decree Fairfield, as ad'-' ministrator, filed 'a petition • the chanCery court 'to modify' the original decree of that 'court—the' decree from . *hich the'appeal to this cOu rt had been rpo secnted. It was insisted in that proceeding that the decree of' the' chancery court erroneously recited: that'the 'sum: lonnd due by' the ad,ministratOr ' should 'beat' intereSt "from this date," that is, the date of the rendition of the decree in the chancery court, whereas the court had, in fact, decreed that the sum found due by Anthony should bear interest from the date of the judgment of the pro:bate court finding and declaring , the sum due by Anthony and directing its paynient to Fairfield as his successor. The chancellor found' 'that petitioner ' was entitled to, the relief prayed and directed, that an order. should be entered num pro tiow correcting the' decree- of the chancery 'court bY . interest . from' . the ' date of the , probate judgmen.t The surety On . Anthony • 's , bond as,administrator has:appealed from . that order. 11/ It is insisted that the testimony did . not warrant the finding ,of the conft'15eloW, and that nothing more was shown than- that the chancery ourthad erronepusly fixed the date from, which interest should - be, calculated. We do not set out the te g timonY On which the finding was made, as we regard it as unimpOrtant. .' The fact is that the decree . appealed 'from to this cOnrf directed that the. interest should be calculated from the 'date . of that dkcree, and this decree, although it may have been erroneous in the' respect . indicated, was .. .affirmed by us ,after modifying it iby directing that the administrator • have credit' for the disputed claiins against the estate 'which hel had paidi The decree of this court. pronounced pursuant to our opinion , on the fornier appeal superseded alike the judgment of the probdte court and the decree of the chancery court. We adjudged the rights and* liabilities of the parties litigant, and the decree of this court was that the decree of the chancery court be modified and affirmed,
ARK.] FIDELITY & DEPOSIT CO. V. FAIRFIELD. 999. and our modification did not affect the time from whiCh: the:interest should be: calculated. • Our attention was not called -tO the fact that the decree appealed_ from . erroneously directeethat interest' be calculated i from the date Of that dee . ree,'instead of the date' Of the• probate judgment directing AnthOhy to pay (Wet the'fands in hiS hands to hiS suleceSsor, and, withont haying our : attention called to this error, Whieb Could haVe been cOrrected by nS, we affirmed 'the deCree, in so' far as it , fixed the point of time 'from Whicb the in: terest 'Was td be calenlated. The decree of this court on the 'fq inier appeal is concha:sive' Of the'question.' The effect of the nivde i)ro,tu4ie Oi-der here 'appealed from is tO -aineiid, not only the firSt decree appealed from, 'but also the'decree of this court on tbe aPpeal. The chandery Cenrt was Without jurisdiction to a:b It foll q ws' thereforethat the decree of , the chan-,/ cery.Tcouii, amending ., the .original . decree by a , iiunc pro. iuiie order is erroneous, and it is therefore .reversed, and. will . be set aside . and canceled, and the interest will therefore :be 'Caleulated' from the - date of the I'decree aPPealed frqm. ,SmTny, Jn. the . brief of counsel fOr appellee in , support of the .petition for rehearing it is . insisted that . we erred in holding that the error . ,com-. plained qf was one . that conld have been corrected on the first 4ppeal, arid in support of this contention the case of Foolis v. Bilby f: 95 „ A rk. 30 9 is cited. 7 . • . We do nof concur in the vie* of counsel that . the case cited:thaS any application 'here. The . -Foohs' case was a law case ; the instant case is one in : ecinity. Upon appeal from the cireuit court we do- not try the- case de 'novo. We only review the errors assigned. In chancery appeals we do try the cause de ; novo, and, having done.se ,:We enter here the . dedree whick in our opinion, should have been rendered-by the court below ; or,. in certain . Cases,.. we reinand . the cause with directions to the :court below as to the decree to enter. In certain e*ceptional eases .per-
./' 1000 FIDELITY & DEPOSIT CO. V. FAIRFIELD.. [169 mission is . granted to take additional testimony in the court below. But whatever the order of this court may be , in a chancery appeal, the finding of this 6ourt is based upon a trial do novo here. In the first appeal, reported in 164 Ark,..498, the entire case was before us, and, after a trial , de novo, we entered the decree which; in our opinion, should ,have been rendered in the court below. We held that the administrator had been .erroneously denied certain credits which should have been allowal . him, and we modified the decree by allowing these credits, but in all other respects the decree was affirmed. One of . the questions necessarily involved on the appeal was the . date from which the interest should have • been calculated. The chancery court had adjudged that interest should be calculated frorh the date, of the decree in that court ; at least the decree so recited. •••• The insistence now is that this was not in fact the decree of the chancery court,.and that that court has the right.to correct the decree to conform to the 'adjudication ivhich was in fact made. . But, as we have said, the . whole case was - before' us for a trial de novo, and the date from which interest should be calculated was a question necessarily involved in _the appeal. We 'Affirmed a decree which recited that the interest should be calculated, not from the date of the approval of the adthinistrator's settlement in the probate court, but 'from the date of the decree of the chancery court from which the appeal was prosecuted. It is now insisted that it appears, from the testimony taken on the motion in the court below to correct this . decree, that interest should properly have been computed from the date of the administrator's settlement when he was ordered to pay over the funds in his hands "to his successor. It was within our jurisdiction to so decree, and we might have done 'so, had the matter been called to our attention, bnt it was not, •and the effect of our decree was to affirm that part of the decree appealed from which fixed the date of the decree as the - period from which interest should be calculated.
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