Marziou v. Pioche

Opinion — Field

Field, J., delivered the opinion of the Court Terry, C. J., and Baldwin, J., concurring.

By the decision rendered at the October Term, 1857, this case was remanded to the Court below, for the purpose of having an account taken, so as to ascertain the amount for which plaintiffs were entitled to judgment; and, 'by the decision made upon the petition for re-hearing, at the January Term, it was held that, in taking the account, the evidence contained in the transcript could be used. This ruling answers the objection of the appellants to the admission, before th'e referees, of the transcript. The case was sent back, not for a new trial on its merits, but for the single purpose of taking the account, in accordance with the views expressed in the opinion of this Court; and, for that purpose, it was entirely unnecessary to subject the parties to the labor of retaking anew their entire testimony. It was the intention of this Court to give to both parties the benefit of the evidence already reduced to writing, and, at the same time, to allow them, in making up the account, to introduce adtional evidence, if they so desired.

It was within the discretion of the referees to open the case, after it had been once closed, for .the purpose of receiving additional testimony. The exercise of such discretion, except in case of gross abuse, will not be reviewed on appeal.

Judgment affirmed.